Removal of Executors

As a rule of thumb, executors have one year from the date appointed to distribute estate funds to beneficiaries. The Executor can make distributions earlier. Further, some estates take more than a year for a good reason, such as selling a business or selling problem real estate. Other reasons for delay are tax disputes and lawsuits. If the administrator’s reasons for delay are valid, the judge will give them more time. But, the time must be reasonable. An executor cannot use these delays as an excuse to prolong the Estate forever.

Some call an Executor Removal action a “Replacement Action.” This is often the case when the Will lists successor executors and aims to remove the initial Executor, “replacing” him with the successor executor.

Suppose 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. In that case, they can have one of our experienced litigation attorneys file a removal petition.

Before 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 and financial advisors, beneficiaries, bankers, or physicians. Your lawyer must present this evidence in an orderly fashion. An experienced attorney familiar with the court and its procedures best handles this process.

The only way to ensure an Executor has been honest is to secure information from the Executor. You protect yourself by asking for copies of financial documents and being included in important decisions. Have your Estate Lawyer explain the Will and your rights. Request a detailed accounting of all expenditures and a Schedule of Distribution. If these requests go unanswered, you cannot be sure of an Exeuctor’s honesty.

When a Probate is needed, but the named Executor refuses to Probate the Will, the interested parties can have their Estate Lawyer petition for an order. This is allowed to avoid damage to the Estate. For example, only a recognized Executor has the legal authority to secure assets, pay taxes, and insure the property. Furthermore, assets sit unattended, and heirs do not receive their benefit. The court can force the Executor to file the Will and remove the Executor for being unfit.

At the end of one year, the Executor is expected to have completed their duties. This includes gathering all assets, paying all bills, settling creditor claims, paying taxes, and preparing a final accounting for the heirs. There are reasons why these tasks could take longer than one year, but an Executor should not be allowed to drag their feet and take longer simply to delay the Estate’s distribution.

The Will’s terms bind an Executor. If the Executor fails to honor the Will’s terms, a Judge can order them to and make the Executor pay personally for any damages caused.

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 harmful acts, such as a Breach of Fiduciary Duty, the judge may order the Executor to repay the amount given to the lawyer.

Beneficiaries have rights to information, but there is a limit. But, if an Executor keeps the heirs informed, it is unusual for them to become disruptive. If an heir’s Estate Attorney files a petition demanding information and the judge decides the Executor has provided enough, this only unnecessarily increases the Estate’s expenses, reducing the heir’s inheritance. But, if an Executor does not feel they are up to providing the heirs with reasonable information, they can either refuse service or later resign.

If the beneficiaries are satisfied with releasing the Executor without an accounting, then no accounting is needed. But, if the heirs want an accounting, their Attorney can petition for a Formal Accounting. This is often the result when an Executor refuses to share information or the information provided is false or misleading.

A court with unique procedures and rules hears Executor Removal cases. Therefore, your Attorney must present the case in a specific manner. Evidence must be gathered through witness interviews, depositions, and documents secured by subpoena. Missed deadlines may hurt your case.

Like any profession or trade, It takes years of experience to master this process. Your case is best served by having an attorney familiar with and experienced with these procedures.