If you are a beneficiary of an estate, you may have concerns about the fitness of an executor to serve. Maybe you are worried they are taking money from the estate and using it for their own benefit. Maybe they are not mentally capable of serving. Whatever your concerns are, understand that action can be taken to remove an executor if he or she is not fulfilling his legal duties.
Obligations of an Executor
Before we get into why and how an executor may be removed, first let's review his responsibilities once he is appointed.
The executor of a will serves as the personal representative of the deceased's estate. When he is formally appointed, he must sign an oath stating that he understands the expectations of settling the estate and that he will perform his duties to the best of his ability. This means that the court as well as the deceased's family and heirs are trusting the executor to manage the assets within the estate appropriately.
Depending on the complexity of the estate, his his responsibilities can be both time-consuming and costly. It is important that the executor recognize the significance of administering the estate. Before estate can be closed and the final distribution made to the beneficiaries, he must take certain actions:
- Settle all the decedent's personal and business accounts
- Gather and account for all of the assets
- Account for any debts owed and pay them
- File the decedent's final tax returns
If the executor does not manage the estate properly, he can be removed. The court will remove an executor who fails to meet legal obligations or follow orders from the Court.
Executor's Obligations to Beneficiaries
In addition to court duties and legal requirements, the executor also has a responsibility to the beneficiaries and has a fiduciary duty to the beneficiaries of a will. What this means is that he must act in their best interests. The executor cannot:
- Misuse assets of the estate
- Play favorites with certain beneficiaries
- Allow assets of the estate to significantly dissipate in value
- Invest in risky investments
- Fail to pay taxes
- Refuse to follow court orders
- Fail to file proper paperwork with proper legal authorities
Unfortunately, sometimes an executor fails to meet these legal duties and obligations. This failure creates anxiety for everyone involved with the estate. There is often confusion, anger, and angst among the beneficiaries. And rightfully so. There is an extreme amount of trust placed into the executor. If he fails in his obligations to the court and beneficiaries, there is a complete breach of trust that amounts to a betrayal.
Removal of an Executor
If it is discovered that the executor has breached his fiduciary duty and is not acting appropriately, then the beneficiaries have the option to file a petition with the Court to remove him. If the Court finds that the evidence indicates he has acted wrongly, the court can remove the original executor and appoint a successor.
Also note that the Court will take action immediately to remove the executor if it is discovered that the individual:
- Has been convicted of a felony or
- Does not have the mental capacity to serve
If the court removes the executor from his role, the successor will be formally appointed by the Court and will take over the responsibilities.
When an executor fails to perform his legal obligations to the estate, the beneficiaries suffer the consequences. Significant delays in obtaining inheritances are common, and the decedent's debts may increase if the assets are not being properly managed. If this happens, a qualified attorney can assist beneficiaries in petitioning the court to remove and replace the current executor.
While every one who makes a will hopes their executor will perform his duties efficiently and with integrity, it is important to be prepared for situations where the executor may need to be removed. The removal can be a stressful and difficult process, and it is best to seek the support of an experienced attorney to assist you.