How to Challenge an Executor of a Will

By Teo Spengler

If the estate is the boat, the executor is the captain. An executor -- termed personal representative in some states -- is the person selected by the testator to administer his estate, gathering assets, paying debts and disbursing estate property according to the terms of the will. If an heir challenges the appointment of an executor, the court sets trial on the issues raised. While the legal terminology differs among jurisdictions, in general, courts remove executors for failure to fulfill the duties of office. The appointment of an executor also fails if the will appointing her is void or invalid.

Step 1

Consider whether you have standing to challenge the executor. In most states, only an "interested" person has standing to object to a named executor or challenge the will -- that is, a person who inherits under the will currently in probate or who stands to inherit if the current will is invalidated. A close relationship with the deceased, by itself, does not confer standing.

Step 2

Investigate whether the executor was actually named in the will. A simple reading of the will is often sufficient. If circumstances warrant, look for evidence that the testator intended another person of the same name to serve or that a third party changed the will terms. Consider whether the will appointing the executor was invalid. The most straightforward challenges to an executor are proof that the testator did not appoint her or proof that the will appointing her was forged, improperly witnessed or otherwise invalid.

Protect your loved ones. Start My Estate Plan

Step 3

Consider grounds for challenging the executor. An executor stands in a position of trust to the testator's heirs; the law imposes the highest possible duty on an executor, termed a fiduciary duty, identical to the duty the law imposes on a parent toward a child and an attorney toward a client. An executor's duty requires that she take whatever action is necessary to ensure that the beneficiaries of the will receive maximum benefits; it strictly prohibits self-dealing or dishonesty. Consider whether evidence establishes that the executor is unfit to undertake that duty or that she has failed to perform that duty.

Step 4

Be sure your evidence rises to an incapacity if you are claiming unfitness to serve. The court starts from the assumption that an adult is of sound mind, so evidence of unfitness to serve must overcome that presumption. Proof must establish a physical or mental handicap that prevents the executor from performing her duties. Courts disqualify executors -- deem then unfit to serve -- if they have previously served jail time for criminal behavior.

Step 5

Gather evidence of misconduct affecting the estate, if you base your challenge on improper behavior as executor. Proof that the executor stole or embezzled from the estate, lied to the court or failed to obey a court order generally results in disqualification. However, claims of "estate mismanagement" must comprise more than a difference of opinion about the best investment strategy. Nor do courts often censure an executor for failure to act in the time frame preferred by the heirs. Misconduct must be serious and those challenging the executor bear the burden of proof.

Step 6

File a timely objection to the will or to the executor with the probate court. Your time frame depends on the probate procedures in your jurisdiction and on the claims you forward. Upon receiving an objection, the court sets a trial date for each side to present evidence. Prepare your case and present your arguments. Convince the court of your allegations. The court either rules immediately after trial or, more likely, takes the matter under advisement and mails a written decision to the parties at a later date.

Protect your loved ones. Start My Estate Plan
How to Remove an Executor of a Will


Related articles

Can I Fire the Executor of My Uncle's Will?

Once the probate court has designated an executor to your uncle’s will, it will not likely remove that person from the role. Being rude to you, not acting according to your schedule or making decisions about the estate you don’t agree with are generally not sufficient reasons to remove an executor. However, if you qualify as an interested person, you may be able to have the executor fired if he does something seriously wrong.

How to Remove an Executor From a Will in the Commonwealth of Massachusetts

A Personal Representative, or Executor, is appointed by the court in a probate proceeding to protect the assets of the estate and to transact business on behalf of the estate during the probate process. The Executor is also responsible for liquidating assets to satisfy creditors of the estate, and to make inheritance distributions from the estate to the heirs and beneficiaries. But what if the Executor makes a decision that you, as an heir or beneficiary, think jeopardizes your inheritance, or that of another heir or beneficiary of the estate? In Massachusetts, the Massachusetts Uniform Probate Code, Article III Section 3-611, provides the steps necessary to remove a personal representative in just such a situation.

What if a Beneficiary Steals From the Estate?

An estate is created when someone dies. By the terms of a will, estate assets pass to heirs and beneficiaries. If someone named as a beneficiary gets up to fraud, larceny or theft of estate assets, he's subject to criminal charges brought by other heirs or by a prosecutor. If that same individual has been named as a personal representative or executor of the estate, state law would also provide sanctions such as fines, court costs and restitution.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

How to Have Someone Removed as the Executor of a Will

One of the benefits of writing a will is choosing your own executor. An executor steers the will through the probate ...

How to Fire the Executor of a Will

Although an executor owes a fiduciary duty to the heirs of the will she administers, the heirs do not hire her and ...

How to Contest the Executor of a Will

An executor is a person who handles the financial affairs of an estate, including the distribution of assets to heirs, ...

How Long Does it Take to Probate a Will?

Probate is the legal process a person must go through to settle the estate of a deceased person who died with a will. ...

Browse by category
Ready to Begin? GET STARTED