The court can remove a fiduciary, such as an Executor, when the court believes that the Executor has taken action counter to the beneficiary’s best interest breaching their fiduciary duty.
The judge will remove an Executor only if he or she hears the proper evidence. You must provide the judge evidence in the form of documents and testimony. Gathering this evidence requires depositions, expert witnesses such as accountants, interrogatories, witness interviews, subpoenaed documents and evidence presented following the Rules of Evidence and subject to the Executor’s objections. Our experienced Estate Litigation Attorneys will walk you through every step of this complicated journey. Convincing judges to remove Executors is what we do.
Judges take Executor removal seriously, and will only accept evidence if your team has followed proper procedures. Further, Executors are free to use Estate funds to defend themselves. If not countered by an experienced attorney, the fiduciary can use procedural steps to draw out the process and increase costs. An experienced Executor Removal Attorney can assess the situation and help avoid pitfalls. In the end, the experience will save you money.
Just being upset with the Executor is not enough. You must provide the judge with a basis for removal. Every case is different, but this is a list of some common reasons for Executor Removal.
If an interested party believes that an Executor has committed acts requiring removal they can hire an Estate Litigation Attorney to petition for that fiduciary’s removal. Further, if the Executor’s wrongful act has damaged the Estate, the Attorney can also Petition to force the Executor to file a Formal Account. In this process, the Estate Litigation Lawyer can obtain an order allowing discovery. This allows the lawyer to depose the fiduciary, subpoena evidence, obtain records and interview witnesses.
If the Executor will not alter his behavior and correct any damage to the interested person’s satisfaction, the judge will hold a hearing. At this hearing, the Estate Planning Lawyer will present the evidence gathered, using the court’s Rules of Evidence and Procedure. If after hearing all the evidence the judge finds that grounds exist for removal, the judge can order the fiduciary’s removal and surcharge the fiduciary for damages.
Retaining an attorney experienced with Executor removal will save time and money. An experienced Estate Litigation Attorney will assemble and present the evidence so the judge can properly rule as quickly as possible.
Some people refer to a Executor Removal action as a “Replacement Action.” This is often the case when the Will lists successor executors and the goal is removing the initial executor, “replacing” him with the successor executor.
If a beneficiary or other interested party believes that an initial executor has not fulfilled his duties or obligations, or has committed a Breach of Fiduciary Duty, and wants the successor executor to serve instead, he or she can have one of our experienced litigation attorneys file a removal petition.
Prior to the hearing, discovery is made and evidence is obtained to present to the judge. This discovery process may include depositions, interviews and interrogatories of the existing executor as well as financial advisors, beneficiaries, bankers or physicians. This evidence must be presented to the judge in an orderly fashion. An experienced attorney familiar with the court and its procedures best handles this process.
The interested party pays the attorney, but if the removal action is successful, the judge may order reimbursement from the estate. The Executor may also hire an attorney. The estate pays this attorney, but if the judge removes the Executor for bad acts, such as Breach of Fiduciary Duty, the judge may order the Executor to repay the amount given to the lawyer.
If you are seeking to remove an Executor your case will be heard before a court with unique procedures and rules. Your case must be organized and presented in a specific manner. Evidence must be gathered through witness interviews, depositions and documents secured by subpoena. If deadlines are missed, your case will be dismissed.
Like any profession or trade, It takes years of experience to master this process. Your case is best served by having an attorney familiar and experienced with these procedures.
If you have any questions about removing an Executor or any other estate law topics, please contact us to schedule a free consultation.
For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate laws and techniques clearly and concisely. If you need to remove an Executor our our experienced Probate Litigation Attorneys will make it easy for you to understand the process and provide top notch representation.
Many firms assign Estate Litigation cases to their young lawyers or a general litigator. This is not cost effective. Being that Estate Litigation is what we do, our experience allows us to focus quickly on the issues that matter. By being focused, we arrive at the most cost efficient plan. We find the solution to your problem while the others are just warming up.
While some firms litigate, few of them have whole departments focused exclusively on estate matters. At Klenk Law, our Estate Litigators have the luxury of partnering with other lawyers from our Probate and Estate Administration or Estate Planning Departments. The depth of experience we can focus on your case is truly impressive. Whatever issue you are facing, our team has the answer.
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