Trouble With an Executor

by Beverly Bird

Just because your loved one trusted an individual enough to name her as executor of his will, doesn’t automatically follow that she’s right for the job. In many cases, decedents write their wills and name their executors many years before their deaths. Circumstances can change in the interim and the executor may no longer be qualified. Unfortunately, beneficiaries often don’t become aware of this until the executor has taken office and they realize she’s bungling the job.

Options

If you’re having serious trouble with the executor of your loved one’s estate, you have the right to file a complaint with the court to remove her from office. However, courts generally won’t grant such requests without good cause. If the executor is doing what she’s supposed to do, but not a very good job of it, or if she’s being rude or uncooperative, a judge probably won’t remove her on this basis alone. You must be an “interested person” to make such a complaint to the court. This means you have some legal standing in the case. Usually an interested person is one who is a beneficiary or a creditor who can be harmed by the executor’s unacceptable performance.

Ethical Misconduct

Ethical misconduct is grounds for having an executor removed. In many states, you can file a demand with the court, asking that the executor give a full accounting of everything she’s done on behalf of the estate so far. If you ask an attorney to review the accounting, he may find clues of some wrongdoing. You might then have to investigate further to dig up concrete proof. For example, the executor might be consistently selling estate assets below their value, ostensibly to raise money to pay the decedent’s debts. You might realize that a disproportionate number of these sales involve the same individual or company. If you can establish a personal link between the executor and that company, you might be able to show that she’s making the sales for her own financial gain. Alternatively, she might have hired an attorney for the estate, and she’s paying him top dollar from the estate’s funds. Establishing a personal relationship between the executor and the lawyer can also prove ethical misconduct.

Mismanagement

Trouble resulting from the executor’s negligence or inability to perform the job is usually far easier to prove to the court. The evidence will appear in her transactions, or in her failure to file required reports with the court. Shoddy record-keeping and missed deadlines, such as for the decedent’s or the estate’s tax returns, are grounds for removal. Other examples include failure to maintain insurance policies to protect assets, not paying the decedent’s creditors, denying their claims without justifiable cause, or even making errors managing the estate’s cash assets, resulting in overdraft fees and other bank penalties. When you discover these problems, and if you can establish a consistent pattern of errors, you can bring them to the attention of the court. The judge will most likely appoint someone else as executor instead.

Risks

Challenging a troublesome executor is not without its risks. If the court finds that your accusations are frivolous, the judge could very well order you to pay the legal fees she incurred defending herself. Even if the judge decides your case might have some merit, but not enough to warrant removing the executor, the estate would most likely have to pay the executor's legal fees. Most courts would not hold her personally responsible and require her to pay for legal representation out of her own pocket. This would shrink the net value of estate and result in less for the beneficiaries when the estate closes.