Posted by: Apr 22, 2020

Removal of an Executor

The executor of an estate is appointed to carry out a decedent’s final wishes and to protect the interests of the beneficiaries.

But sometimes an executor fails to fulfill their duties. They may get caught up in their own interests or neglect their responsibilities. When this occurs, beneficiaries may consider filing a petition to remove the executor of an estate.

The process of removing an executor and replacing them with someone else can be complex. It involves gathering evidence, filing documents, arguing in court, and complying with important procedural rules. An experienced estate planning lawyer can assist you with this process and help protect the interests of the estate and its beneficiaries. 

What Are the Duties of an Executor?

The executor of an estate owes fiduciary duties to the estate’s beneficiaries. This means that in exercising their responsibilities, an executor must put the interests of the beneficiaries first, even above the executor’s own interests. An executor’s responsibilities include:

  • Identifying and collecting the estate’s assets,
  • Managing and protecting the estate’s assets until they are distributed,
  • Notifying creditors of the decedent’s death and paying debts,
  • Locating and notifying beneficiaries,
  • Paying taxes,
  • Accounting for all assets and payments, and
  • Distributing assets in accordance with the will.

In fulfilling these responsibilities, an executor has fiduciary duties to:

  • Loyally act for the benefit of the estate’s beneficiaries and not engage in self-dealing;
  • Act prudently in managing the estate’s assets; and
  • Take steps to preserve the assets, such as ensuring that adequate insurance is in place.

A beneficiary may petition to remove the executor of an estate if they fail to fulfill their responsibilities or if they breach their fiduciary duties in doing so.

How Do You Petition to Remove the Executor of an Estate?

If you believe an executor’s actions require removal, you can file a petition asking the court to remove and replace the executor and explaining the grounds for removal. Examples of actions that may justify removal include:

  • Engaging in misconduct or self-dealing,
  • Failing to comply with the terms of the will,
  • Mismanaging or neglecting assets of the estate,
  • Breaching a fiduciary duty,
  • Becoming incapacitated,
  • Having a conflict of interest,
  • Misappropriating funds, or
  • Charging excessive executor expenses or fees.

If your petition is based on some form of misconduct, you can also ask the court to order the executor to file a formal account. This will allow you to determine whether and to what extent the estate has been damaged by the executor’s actions. If the estate has suffered damage, the court may require the executor to pay for the estate’s losses.

How Much Does It Cost to Remove an Executor?

When an executor mismanages an estate and puts its assets at risk, the consequences can be costly. The expense of hiring an attorney to remove the executor of an estate will likely be much less in the long run than the losses the estate may suffer if the executor’s bad actions continue.

The precise cost to remove an executor depends on the circumstances of your particular case. You can get a better idea of the cost by consulting with an estate planning attorney.

You should generally expect to pay your own attorney fees if you pursue a removal action. However, if you succeed in removing the executor, the judge may order the estate to pay your attorney fees.

Keep in mind that the executor will likely be able to hire an attorney using estate funds. However, if the executor is removed, the judge may order the executor to reimburse the estate.

Although you can attempt to pursue a removal action without an attorney, you will be at a distinct disadvantage in doing so. Since the executor can fund their defense using estate assets, they can afford to drag out the process and make it difficult for you to hold them to account.

With a skilled estate planning attorney in your corner, you will be in a much better position to protect the estate from mismanagement and wrongdoing.

The Curley Law Firm Can Help You Remove the Executor of an Estate

If you believe you need to take action to remove the executor of an estate, contact the Curley Law Firm. Skilled estate planning lawyer, Adam Curley, can help you protect an estate from mismanagement and hold the executor accountable for any wrongdoing. Call or fill out an online form today to schedule a case evaluation.