An executor, also known as a personal representative is assigned by the testator — the person who writes the will. The executor is responsible for carrying out the will and its terms. They are responsible for gathering and investing assets. Also, they are 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. Therefore, the executor is required to put their interests above all and not engage in self-dealing. The executor must act in good faith, act reasonably and with diligence. Furthermore, there are some limitations to the power of the executor. Every action made as an executor must be able to demonstrate that it was in the best interests of the estate. This ensures that the executor does not act on their own self- interest but rather on the wishes of the deceased.
Yes, generally the beneficiaries make the decision of removing the executor. It is a rare occasion, but you can request the probate court to remove the executor who you had appointed as the personal representative and replace with someone else. The courts are reluctant to remove an executor unless there is a valid reason for the removal.
Courts take into consideration the welfare of the beneficiaries, and is it in their best interest to do so. Each state varies on this and will determine the case by facts presented. If the executor violates the fiduciary duties of dealing with honesty and fairly, they can be required to pay for the losses due to their actions.
If the executor is incompetent or dishonest, the court can remove them. However, the beneficiary needs to prove this to the probate court in order 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 reasons to have an executor removed but usually these are some of the considerations the courts factor in situations where 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 a removal of the executor even if they failed to protect the assets although there was no evidence of them being personally dishonest. However, executors who deal with good faith and try to manage through those 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 still not as beneficial for the estate.
Another reason for a removal of an executor is a conflict of interest that 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 has a stronger incentive to properly take care of it. However, the conflict occurs when it becomes impossible for the executor to serve as a fiduciary.
If the court decides to remove the executor it must replace with someone else unless the will specifies otherwise and has an alternative named for the executor. If not, the court needs to turn to state law to determine who the executor will be. Most states have a list of priority people that can be named the executor. For example, the surviving spouse, adult children and other distant relatives. Furthermore, court will not remove an executor based on frivolous reasons.
These 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.
Removing the executor is a complex process and the courts require proof of why the executor needs to removed. If your 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 there is dishonesty, unfair dealing or bad faith on the part of the executor it may help to investigate the local state laws regarding removal of an executor. There are systems in place 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 the conflict.