What If the Executor of the Will Cannot Be Trusted to Be Fair?

By Anna Assad

An executor is responsible for managing many aspects of a decedent's estate, including assets. You must act if you believe an executor is being unfair or behaving dishonestly. If you fail to take action against an executor performing in a dubious or unethical manner, the estate may suffer losses and you could lose part or all or your inheritance. State laws vary, but you can usually take action against an executor if you are an interested party to the estate, such as a beneficiary under the will.

Executor's Role

An executor collects estate assets and transfers inheritances to the beneficiaries as directed by the will. The executor manages and protects assets – for example, making sure the decedent's home is secured – until assets can be passed to beneficiaries or sold and the proceeds given to the beneficiaries. An executor also pays the decedent's final bills and handles other duties related to the estate such as preparing final tax returns. As a fiduciary, the executor has a legal duty to behave in a fair and honest manner when it comes to the estate and its assets. He must act in the best interests of the estate and its beneficiaries.

Beneficiary's Rights

State laws define the rights of beneficiaries under a will, but some rights are established by common law. A beneficiary has the right to notification of probate court actions, to see the original will and to ask the executor for information and documentation relating to the estate assets such as value appraisals, asset sales contacts and a property inventory. Beneficiaries also have the right to a timely inheritance, but state laws differ on deadlines for inheritance transfers to heirs. Some transactions, such as a home sale, will take the executor longer to complete. If the executor is entitled to money for his services, the beneficiaries have the right to object to the amount he's requesting. In cases where the beneficiaries and executor can't agree on compensation, the court decides.

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Unfair Conduct

State laws define instances of unacceptable conduct by an executor. While laws vary from one state to another, the common features of unfair conduct include favoring one beneficiary over others, using estate assets for personal use, poor asset management, and failing to provide a beneficiary with information requested and which she has a right to receive, such as asset information and court papers. For example, if an executor gives money to one beneficiary but withholds money from another without an acceptable reason, he is being unfair. One possible justification in this scenario is that the only asset the other beneficiary inherited hasn't been sold yet. Some instances of unfair dealings by an executor are easier to prove than others are. For instance, if the executor is using money for personal reasons, the beneficiary can petition the court for an accounting, which should reveal missing money or assets.

Remedies

If you believe you are dealing with an unfair executor, the first steps will depend on what actions are being called into question. For matters related to assets, you can usually file a petition in the court overseeing the estate to force the executor to produce an accounting of what he's done so far. The court will investigate any irregularities or problems discovered and take action, which may include removing the executor. For other issues, such as the executor not providing requested information, court remedies vary by state. You might be able to file a petition in probate court to compel the executor to fulfill his duties, or you may have to go to civil court if you've been injured by his actions.

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References

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