The executor of an estate is generally a person the deceased named in his will, a person who submits the will to probate and then obtains control of the deceased's affairs by qualifying as his personal representative. The executor has a fiduciary duty — a duty of trust and integrity — to the estate's beneficiaries. While most people try to appoint trustworthy individuals as their executors, the case sometimes arises where a dishonest executor needs to be removed.
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Compel an Accounting
If you are an interested party and you suspect an executor of dishonest behavior, you have the option of filing a motion with the probate court to compel an accounting of all property of the estate. If you prevail, the executor will have to show what property of the estate has come under his control and what he has done with it. Forensic accountants or other financial professionals can examine the accounting in an effort to detect mismanagement, neglect or outright stealing.
Motion for Removal
Executors must manage the estate for the benefit of the named beneficiaries under the will. This position requires not only trustworthiness and honest handling of estate property but also prompt and competent handling of that property in order to maximize the value available for beneficiaries. If the court feels that the executor's mishandling of the estate is serious enough, it can order his removal from that position. The court would then have to appoint someone honest enough and capable enough to serve as executor of the estate.
Civil Action for Damages
In some cases, you may be able to sue the executor personally in civil court for negligence, breach of fiduciary duty or fraud. If you succeed, the executor's personal assets may be available for seizure to help compensate the estate and its beneficiaries for their losses due to the executor's misdeeds. If you become a successor to a misbehaving executor, one of your first duties may be to pursue that individual in order to recover value for the estate.
Since the opportunities for theft, self-dealing, mismanagement and neglect are many in the job of executor, state law often requires executors to post a bond at an early stage in the probate proceeding. A bond is a guarantee, generally provided by an insurance company, that there will be funds available to compensate the beneficiaries in the event the executor somehow fails in his duties. The amount of the bond usually depends upon the value of the estate. In some cases, however, the testator — the individual who made the will — may have specified that the executor could serve without giving bond.
References & Resources
- D'Alessandro and D'Alessandro, LLC: Breach of Fiduciary Duty
- The Law Offices of Kai H. Wessels: Breach of Fiduciary Duty
- The Law Office of Janet L. Brewer: Dealing With an Uncooperative or Dishonest Executor or Trustee
- North Carolina General Statutes Section 28A-9-1: Revocation After Hearing
- North Carolina General Statutes Section 28A-9-2: Summary Revocation
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