How to Replace the Executor of a WillBy Belle Wong
How to Replace the Executor of a WillBy Belle Wong
Most executors of a will perform their duties effectively and efficiently. But on occasion, a testator—the person who made the will—may have made an inappropriate choice when deciding on an executor. Or perhaps circumstances have changed, and an executor who was doing their job adequately becomes unsuitable.
When beneficiaries find themselves dealing with an executor who really shouldn't be in that role, things can worsen to the point where the estate's assets are endangered.
Here's how to change an executor if the need arises.
Duties of an Executor
If a will names an executor when the testator dies, this individual, also known as the personal representative, becomes responsible for the duties of administering the testator's estate. In general terms, this means the executor is responsible for paying the estate's taxes, expenses, and debts, and then distributing any property that remains to the beneficiaries in the manner and amounts set out in the will.
Above all, an executor owes a fiduciary duty to the estate. What this means is, when dealing with estate-related matters, the executor must put the interests of the estate above their own interests. However, beneficiaries need to remember that the executor owes this fiduciary duty to the estate, not to the beneficiaries themselves.
Replacing the Executor
If the testator is still alive, replacing the executor named in the will is easy. The testator can either create a new will that supersedes the old one or attach a codicil naming a new executor to the will.
Things get a lot more complicated, though, if the testator has died, and it's the beneficiaries (or creditors) wish to replace the executor named in the will. At this point, replacing an executor requires court involvement.
Generally speaking, an interested party or parties—beneficiaries, creditors, or both—must file a petition with the court (or, depending on the state, file a motion) requesting that the executor be removed.
The petition or motion must set out the grounds for this request. Once it is filed, a hearing is held to decide the issue. This hearing is run much like a trial, with both sides presenting evidence and the court making a ruling as to whether the executor is to be removed or not.
Grounds for Removal of the Executor
State laws vary regarding the removal of an executor, but the following are some common grounds that, if proven, will usually justify removal:
- Mismanagement of estate assets: It's important to note that mismanagement generally speaks to gross mismanagement. If an executor takes reasonable actions that provide nonstellar results for reasons outside of their control, this will usually not be seen as mismanagement. For example, a beneficiary may disagree with an investment choice, but unless they can prove that the investment decision wasn't reasonable at the time it was made, it's not likely to be proof of mismanagement.
- Executor's misconduct affecting the estate: Any number of things can fall under this ground, including stealing assets from the estate; lying to court authorities, creditors, or beneficiaries; using estate money to pay personal expenses; and being negligent with the estate's assets in a way that harms or has a negative impact on the estate.
- Conflict of interest: The simple fact that an executor is also a beneficiary under the will does not constitute a conflict of interest; such situations are actually quite typical, as executors are often close family members of the testator and, therefore, also a beneficiary. A conflict of interest may not exist when the executor is appointed but might arise later. For example, a common conflict-of-interest scenario might arise in the context of an estate transaction that stands to provide the executor with a financial benefit.
- Incapacity or ineligibility: The courts can remove an executor who is no longer competent, whether due to physical or mental incapacity, or being unable to make the decisions necessary to manage the estate. But the incompetence can also be the result of legal ineligibility. For example, in some states, a person who's been convicted of a felony is not eligible to be an executor.
- Noncompliance with the will or a court order: Whether it's the terms set out in the will or a court order directing the executor to do something if beneficiaries can prove the executor's failure to comply as required, the court will likely approve the executor's removal.
If an Executor Is Removed
If the court rules that the executor should be removed, and the will names a successor executor, the court will typically appoint this individual as the new executor. In cases where the will fails to name a successor, the court can appoint a new executor. State rules may apply to restrict or mandate the persons eligible for the role.
Replacing an executor is not an easy process. Removal of an executor requires a beneficiary to go through the courts, and clear evidence of the executor's wrongdoings or incompetence is generally required. But sometimes an executor needs to be replaced in order to reduce potential harm to the estate's assets. If you find yourself in this position, consulting with an experienced attorney is the most prudent approach.
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