The term executor refers to the person in charge of a decedent’s (person that passed away) estate. Before a person dies, they typically designate an executor of their estate in their will. Typically, the named executor is a family member or close friend, but may also be an attorney or other qualified individual. This person manages the decedent’s estate, mainly ensuring that all of the estate is distributed according to the decedent’s will. Additionally, the executor ensures that the debts of the estate and other financial matters are taken care of.
An executor’s duties are numerous and they vary according to the nature of the estate involved. The executor must ensure that all of the decedent’s taxes and debts are paid, then distribute what is left to the appropriate beneficiaries. All of this is to be completed in accordance with the decedent’s will.
Additionally, the executor has a fiduciary duty. This means that they must act in a manner of good faith and impartiality in ensuring that the desires of the decedent are carried out to whatever extent possible. Simply put, fiduciary duty is the duty to protect and manage a deceased person’s property, in the best interests of the estate.
Fiduciary duty dictates that the executor must take reasonable steps to fulfill whatever instructions the decedent left behind, in regards to their property and assets. Executors have an additional duty to refrain from certain types of actions or conduct, such as using the decedent’s assets for their own personal gain or profit.
As mentioned above, the estate executor is prohibited from doing several things. Some examples of things an executor is not allowed to do include:
- Mixing their own personal funds with those of the estate;
- Making unreasonably risky judgments with the estate’s investments;
- Using estate assets for personal gain, known as self-dealing;
- Refusing to give the heirs and beneficiaries what is rightfully theirs as dictated by the decedent’s will; or
- Failing to follow the exact instructions of the decedent’s will, when exact instructions are available.
Violating any duties could result in executor liability and legal proceedings. One common example of holding an executor liable is a judge removing the executor from their position, and appointing a new executor.
Generally, the person requesting that the executor be removed from their position must file a request with the court providing a valid reason for removal, as well as any supporting evidence. In some cases, suing the executor may be necessary.
If you believe that you will need to sue an estate executor, it is imperative to document what you believe the violation involves. Additionally, you should review the will yourself to determine what rights you have, or what the rights of the affected parties may have been. Also, you should make and maintain a written account of any statements or actions on the part of the executor that could be used as evidence in your claim.
As previously mentioned, when you sue the executor of an estate, they may be removed from their position. A few other things may also happen, such as damages being awarded to the plaintiff should the court find an executor at fault. Further, if the executor is at fault for any losses suffered by the plaintiff, the executor must remedy the situation and make up for what is owed.
When there are several beneficiaries to an estate, all heirs must agree to sue the executor. Each person is responsible for providing any records of what is owed to them before going to court. Additionally, many states have a statute of limitations, or time limit, as to when a claim against an executor must be made. Every beneficiary will also need to agree to the executor’s replacement. The probate judge can offer a replacement executor, or the heirs may inform the judge of the new executor they have chosen.
It is important to note that a hired executor must be paid for their services, whereas the executor appointed by the decedent is generally compensated by the estate. These services are costly, and the costs could increase if the estate contains a long-term trust. The benefit of a professional executor, as opposed to a family member or close friend, is that a professional can eliminate common problems you may run into in regards to the execution of the will or trust.
All wills and estates vary, depending on the wishes of the deceased, as do the state laws governing these subjects. Further, estate issues can often be complex matters. Thus, it is in your best interests to consult with a well qualified and knowledgeable estate attorney should you find yourself in a situation where you need to replace or sue an executor.
An experienced estate attorney can advise you on your best legal course of action and file a claim on your behalf. Additionally, they can also represent you in court, if necessary.