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Removal of Executors

The court can remove a fiduciary, such as an Executor, when it believes that the Executor has taken action counter to the beneficiary’s best interest, breaching their fiduciary duty. Removal of Executors; It’s What We Do.

Convincing A Judge To Remove An Executor.

The judge will remove an Executor only if they hear the proper evidence. You must provide the judge with proof in the form of documents and testimony. Gathering this evidence requires depositions, expert witnesses such as accountants, interrogatories, witness interviews, subpoenaed records, 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.

Executor Removal Experience Saves You Money.

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.

Reasons for Executor Removal.

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.

  • Friction between Co-Executors.
  • Failure to Comply with Will’s Terms.
  • Non-Cooperation with a Vital Party or a Beneficiary.
  • Neglecting or Mismanaging Estate Assets.
  • Misconduct.
  • Self-Dealing.
  • Abuse of Discretion.
  • Misappropriation of Funds.
  • Hostility Towards Heirs.
  • Breach of Fiduciary Duty.
  • The Executor is Insolvent or Otherwise Unfit.
  • The Executor has Become Incapacitated.
  • The Executor’s Failure to Act.
  • Excessive Executor Fees and Expenses.
  • Executor Being Under Undue Influence.
  • Conflict of Interest.

How to Remove an Executor.

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.

The judge will hold a hearing if the Executor will not alter his behavior and correct any damage to the interested person’s satisfaction. 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.

Experienced Executor Removal Attorneys Reduce Costs.

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 adequately rule as quickly as possible.

Common Questions About Executor Removals.

How long does the Executor have to pay Beneficiaries?

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.

How Do I Remove the Executor and Replace Him with the Successor Executor?

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.

How do I Know if an Executor has been Honest with me?

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.

What if the Executor Fails to Probate the Will?

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.

Is there a Time Limit for an Executor to Finish their Duties?

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.

Can an Executor Decide What a Beneficiary Gets?

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.

Who Pays the Estate Litigation Attorney in an Executor Removal Action?

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.

What can the Executor do about Beneficiary Harrasemet?

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.

Does the Executor Have to Show the Beneficiaries the Accounting?

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.

Do I Need an Attorney in an Executor Replacement Action?

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.

We Can Help

If you have questions about removing an Executor or any other estate law topics, please get in touch with us to schedule a free consultation.

Reasonable Prices | Years of Experience | We Stand With You and Fight For You.

Klenk Law has focused only on Estate Law for more than two decades. We’ve seen it all; this experience lets us explain complex estate laws and techniques clearly and concisely. If you need to remove an Executor, our experienced Probate Litigation Attorneys will make it easy for you to understand the process and provide top-notch representation.

Why Choose Us

Our Experience Saves You Money.

Many firms assign Estate Litigation cases to their young lawyers or a general litigator. This is not cost-effective. Since Estate Litigation is what we do, our experience lets us 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 warming up.

We Have a Deep Bench, Let’s Put it to Work!

While some firms litigate, few 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 awe-inspiring. Whatever issue you are facing, our team has the answer.

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