An executor, also known as a personal representative, is assigned by the testator. The testator is the person who writes the will. The executor is responsible for carrying out the will and its terms. The testator is responsible for gathering and investing assets. The executor is also in charge of paying the estate bills and distributing the remaining property to beneficiaries.
An executor owes the beneficiary of the estate a fiduciary duty. The executor is required to put their interests above all and not engage in self-dealing. The executor must act in good faith, with reasonableness and diligence. There are some limitations to the power of the executor. Every action made as an executor must demonstrate that it was in the best interests of the estate to ensure that the executor does not act on their self-interest but rather on the deceased’s wishes.
What Are the Duties of an Executor?
The executor of an estate owes fiduciary duties to the estate’s beneficiaries. In exercising their responsibilities, executors must put the interests of the beneficiaries first.
An executor’s responsibilities include:
- Identifying and collecting the estate’s assets,
- Managing and protecting the estate’s assets until they are distributed,
- Notifying creditors of the decedent’s death and paying debts,
- Locating and notifying beneficiaries,
- Paying taxes,
- Accounting for all assets and payments, and
- Distributing assets in accordance with the will.
In fulfilling these responsibilities, an executor has fiduciary duties to:
- Loyally act for the benefit of the estate’s beneficiaries and not engage in self-dealing;
- Act prudently in managing the estate’s assets; and
- Take steps to preserve the assets, such as ensuring that insurance is in place.
- A beneficiary may petition to remove the executor of an estate if they fail to fulfill their
- responsibilities or if they breach their fiduciary duties.
Who Can Remove the Executor?
The beneficiaries decide on removing the executor. You can request the probate court remove the executor you had appointed as the personal representative and replace them with someone else. The courts are reluctant to remove an executor unless there is a valid reason for the removal.
Courts consider the welfare of the beneficiaries. State laws vary. Cases are determined by the facts presented. If the executor violates their fiduciary duties of dealing with honesty and fairness, they can be required to pay for the losses due to their actions.
How Can an Executor Be Removed?
If the executor is incompetent or dishonest, the court can remove them. However, the beneficiary needs to prove this to the probate court to remove the executor. To remove the executor, there must be adequate evidence convincing the judge that the executor is incompetent. You will need to gather documents and testimonies as proof for removal.
States differ on the acceptable reasons to have an executor removed. These are some of the considerations the courts factor. When the executor:
- Cannot carry out the duties assigned;
- Refuses to comply with the court’s order;
- Uses the estate funds for personal expenses and other improper uses;
- Does not keep an accurate account of the estate funds;
- Grossly mismanaged the estate property;
- Is convicted of a crime;
- Was under undue influence; or
- Fails to comply with the will’s terms.
Some states even allow for removal of the executor if they failed to protect the assets, although there was no evidence of them being personally dishonest. Executors who deal with good faith and try to manage through their efforts will not lose their jobs. If there is a showing of reasonable decision making, generally, states will not remove the executor if the result is not beneficial for the estate.
Another reason for removal of an executor is a conflict of interest. A conflict of interest could interfere with the administration of the estate. You can be both the beneficiary and the executor. This is not considered a conflict because usually, the one who inherits an estate has a stronger incentive to take care of it properly. Conflicts occur when it becomes impossible for the executor to serve as a fiduciary.
If the court decides to remove the executor, it must be replaced with someone else unless the will specifies otherwise and has an alternative named for the executor. If not, the court turns to state law to determine who the executor will be. Most states have a list of priority people who can be named the executor; for example, the surviving spouse, adult children, and other distant relatives. The court will not remove an executor based on frivolous reasons.
Examples of frivolous reasons include:
- Being rude or argumentative with the beneficiaries;
- Withholding information from the beneficiaries;
- Refusing to invest the assets of the beneficiaries and;
- Taking a long time to settle the estate.
Does it Cost to Remove an Executor?
When an executor mismanages an estate and puts its assets at risk, the consequences can be costly. The expense of hiring an attorney to remove the executor of an estate will likely be much less in the long run than the losses the estate may suffer if the executor’s bad actions continue.
The exact cost to remove an executor depends on the circumstances of your particular case. You can get a better idea of how much it will cost to remove an executor by consulting with an estate planning attorney.
You should expect to pay your own attorney fees if you pursue a removal action. However, if you succeed in removing the executor, the judge may order the estate to pay your attorney fees.
The executor will likely be able to hire an attorney using estate funds. However, if the executor is removed, the judge may order the executor to reimburse the estate.
Although you can pursue a removal action without an attorney, you will be at a disadvantage in doing so. Since the executor can fund their defense using estate assets, they can afford to drag out the process and make it difficult for you.
With an experienced estate planning attorney in your corner, you will be in a much better position to protect the estate from mismanagement and wrongdoing.
When Do I Need to Contact a Lawyer?
Removing the executor is a complex process, and the courts require proof of why the executor needs to be removed. If you’re considering appointing an executor for your will, you should consider someone honest and trustworthy to carry out the terms of your will.
If you detect dishonesty, unfair dealing, or bad faith on the executor’s part, it may help to investigate the local state laws regarding the removal of an executor. There are systems to ensure that the executors do not misuse their authority. The executors need to document the process and submit them to the court. However, conflicts can arise. If a conflict arises between the executor and the beneficiaries, it may be useful to contact a probate lawyer to resolve it.
If you believe you need to take action to remove the executor of an estate, use LegalMatch today. Our database of skilled estate planning lawyers can help protect an estate from mismanagement and hold the executor accountable for any wrongdoing. Use LegalMatch today to schedule a case consultation with a lawyer near you.