Failure to Execute Fiduciary Responsibilities as an Executor of a Will

By Beverly Bird

An executor is not guilty of misconduct if he does not get along with the will’s beneficiaries or puts the estate’s liquid assets into a savings account rather than an investment account. Generally, he must violate some law, misappropriate or fail to protect the estate’s assets, or use the assets for his own financial gain. But if he does any of these things, the beneficiaries have legal recourse.

Action by Court

If an executor fails to take any responsibility at all for probating the will or opening the estate, the courts in most states will get involved within a relatively short period of time and the beneficiaries do not have to do anything. For instance, in North Carolina, the clerk of the Superior Court will file a petition to demand the removal of the executor within 30 days if the executor does nothing.

Probate Petition by Beneficiaries

When the beneficiaries can prove misconduct on the part of the executor while the will is still in probate, they can petition the court to have the executor removed from office. But only the beneficiaries or one of the deceased’s creditors can do this. The person initiating the action must have some financial stake in the estate. If such a person files an application in probate court to remove an executor, the court holds a hearing and the executor gets an opportunity to tell his side of the story.

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Law Suit by Beneficiaries

Another option for beneficiaries is to file a civil suit for damages against an executor who fails to perform her fiduciary duties. For this reason, most states require an executor to post bond before assuming office unless the terms of the will expressly waive this requirement. Bond is an insurance policy that will pay damages assessed against the executor in a law suit by the beneficiaries. The grounds for this option are more difficult to meet than a petition filed with the probate court. The beneficiaries must prove that they suffered financial harm because of the executor’s negligence.

Restitution

Sometimes grievances against an executor can be settled without going to court. In some cases, the beneficiaries and the executor can resolve their differences if the executor agrees to compensate them for any financial damage they suffered due to fiduciary mismanagement. Sometimes the court will simply require that the executor repay the beneficiaries any lost income without also assessing punitive damages, or a monetary punishment for wrongdoing. In these cases, the executor would only have to make good for monies lost due to his failure to execute the will properly.

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When Does a Will Go to Probate?
 

References

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Can a Person Have a Felony and Be Appointed as an Executor of an Estate?

In most cases, a testator -- the person who creates a will -- can name anyone he likes as executor of his estate. His heirs may not agree with his choice, but there's usually little they can do about it if there's no legal reason why the person should not serve. Most courts are inclined to err on the side of honoring the testator's wishes, but in extreme cases, such as the potential appointment of a convicted felon, a judge might bar the appointment.

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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.

Does the Executor Have Authority Over the Will?

An executor is the person named in a will to administer the estate of the person who died. The executor may be a bank or trust company instead of an individual. While state law varies as to the exact duties of an executor, in general all executors must gather the estate's assets, pay creditors, then distribute remaining estate assets in accordance with the will's directives, without any discretion to deviate from the will except in limited circumstances.

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