Suing the Executor of a Will

by John Cromwell

    Beneficiaries named in a will may sue the executor based on the actions the executor took in managing the estate. State laws concerning the management of an estate vary and as such, consider consulting with a licensed attorney prior to any attempts to sue an executor.

    Suing the Executor

    The role of an executor, known as a personal representative in some states, is to handle any issues related to the estate. These duties include distributing estate assets to the beneficiaries and using the estate’s assets to settle the outstanding liabilities of the deceased person, known as the decedent. Based on his role as the representative, an executor may be named as a party in any lawsuit involving the estate. However, an executor is not liable for any of the estate’s liabilities or obligations; he is only liable for any damages that result from any of his actions related to the administration of the estate.

    Establishing Claims Against Estates

    A person may want to sue an estate to receive compensation for damages caused by the decedent before he died. Another reason to sue an estate is to settle debts owed by the decedent. In either scenario, these individuals that are suing are attempting to become creditors of the estate. While the process for suing an estate varies by state, normally the time frame for bringing a claim against an estate and its executor is much shorter than it would be for bringing a claim against a living person. Once the claim is properly filed against the estate, which generally involves naming the executor as a party to the suit, the process for litigating the case is generally the same as it would be with a live defendant.

    Personal Executor Liability

    An executor is considered a fiduciary, meaning he has an obligation to act in the best interest of the estate and exercise all due care in carrying out his responsibilities. An executor meets these responsibilities by taking possession of the estate’s assets, maintaining accurate records, keeping the beneficiaries informed, administering the estate for the sole benefit of the beneficiaries, and by showing the care and skill an ordinary person would demonstrate in managing her own property. Among other things, beneficiaries of the decedent may sue an executor for breach of fiduciary duty or negligence.

    Suing for Breach of Fiduciary Duty

    To prove a breach, a plaintiff needs to demonstrate that a fiduciary relationship existed and that the executor breached that relationship. It is generally established that an executor has a fiduciary duty to an estate, so usually the plaintiff only needs to show that the duty was breached. If the plaintiff is able to prove that there was a breach of duty by an executor, she may be able to claim monetary damages and recover any benefit the executor might have gained due to his breach.

    About the Author

    John Cromwell specializes in financial, legal and small business issues. Cromwell holds a bachelor's and master's degree in accounting, as well as a Juris Doctor. He is currently a co-founder of two businesses.