How to Change the Executor of an Estate

By Beverly Bird

No matter how meticulously you plan your estate, the possibility always exists that the decisions you make won't work out as you hoped. You might choose someone as executor who seems perfectly capable at the time, but over the years develops problems or habits that make him unsuitable to handle your estate. You may nominate a family member as executor, but you and he could become estranged. You can always amend your will to keep pace with life, but if you don't, your beneficiaries will have options.

Beneficiaries Must Have Grounds

If your beneficiaries simply don't like your chosen executor or don't agree with all his decisions, he's probably not going anywhere. Most state courts will not change or remove an executor unless his relationship with one or more of your beneficiaries is so toxic that it interferes with management of your estate. Other grounds include malfeasance – he took an action that was fraudulent or illegal – or neglect if he takes no action toward settling your estate at all. He might also have become incapacitated since you wrote your will, so he may be incapable of serving.

Complaint or Petition for Removal

If your beneficiaries have justifiable grounds, they can file a complaint or petition with the probate court to remove your executor. They can ask the court to replace him with someone else named in the pleadings. The exact requirements can vary from state to state. For example, in New Jersey, an order to show cause must accompany the complaint, demanding the executor appear before a judge to explain his actions or lack of them. Your beneficiaries can also usually request that the executor be prohibited from taking any further actions with your estate until a judge decides the matter. In Virginia, all your beneficiaries must receive notification that you've filed the petition, and some states may require that you have each of them served with a copy of it.

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Other Options

It might happen that your beneficiaries are not sure that your executor has done anything wrong; they just suspect it. In this case, most states allow one or more of them to file a demand for an accounting – a record of all money that has passed into and out of the estate, along with explanations for each expenditure. In New Jersey, a demand for accounting is typically included with the complaint to remove the executor; in other states, your beneficiaries can make such a demand before actually asking the court to replace the executor. If your executor is sitting on his hands, doing nothing toward settling your estate, some states allow your beneficiaries to file a motion or petition asking the court to order him to begin satisfying the terms of your will.

Advance Planning

Your will can go a long way toward avoiding these problems, or at the very least provide a resolution. In Virginia, you can outline exactly how you want the court to handle it if your executor must be removed. You might state that a certain number or all of your beneficiaries can agree that someone else will serve instead. You can name the person who you want to take the job instead if this should occur or nominate co-executors so someone else is automatically available to continue with the job when the other is removed. You can also include specific reasons why the executor might be replaced. If he's not guilty of any of these infractions, you can instruct the court that you want him to remain in office. You might do this if you know your choice of executor will be unpopular and you expect there to be a lot of squabbling, but you feel strongly about it and want him to serve unless he does something particularly egregious.

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What Happens if the Executor Does Not Turn in Probate Papers on Time?
 

References

Related articles

How Does the Executor of an Estate Resign in California?

Probate is a court-supervised process that transfers legal title of property from the estate of the deceased, known as the decedent, to his beneficiaries and heirs. In California, the Superior Court in the county where the decedent lived when he died handles the probate process. Typically, when a person makes a will, he names an executor, also known as a personal representative, to oversee the administration of the estate according to his wishes. An executor has numerous responsibilities. If you are named as an executor in California or in any other state, you have the option of declining the appointment, or resigning at a later date if you accept the appointment.

What Happens if an Executor Refuses to Probate?

An executor has a duty to act in the best interest of the estate, and refusing to probate an estate may be cause for the executor to be removed. State probate laws differ, but the Uniform Probate Code, approved by the National Conference of Commissioners On Uniform State Laws, provides a general framework for handling an executor refusing to move the probate process along. In addition to removal, an executor may be held personally liable for breaching his fiduciary duty to the probate estate.

How to Become an Executor of Your Parents' Estate

Serving as executor or personal representative of anyone’s estate can be a double-edged sword. While it is a great honor to be named in someone’s will as executor, the duty of carrying out his wishes after death may seem overwhelming. Siblings or other family members may be unhappy with the terms of the will and unfairly blame you or be jealous of your appointment and shun you. If, however, everyone is pleased with your appointment and you handle all estate matters fairly and in a businesslike manner, you may be rewarded by the appreciation of other family members as well as a sense of satisfaction that you successfully executed your parents’ last wishes.

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