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.

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.

Protect your loved ones. Start My Estate Plan

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.

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.

Protect your loved ones. Start My Estate Plan
What If the Executor of the Will Cannot Be Trusted to Be Fair?

References

Related articles

Trouble With an Executor

Just because your loved one trusted an individual enough to name her as executor of his will, doesn’t automatically follow that she’s right for the job. In many cases, decedents write their wills and name their executors many years before their deaths. Circumstances can change in the interim and the executor may no longer be qualified. Unfortunately, beneficiaries often don’t become aware of this until the executor has taken office and they realize she’s bungling the job.

What Happens When the Executor of the Will Steals the Money?

Estate beneficiaries must move quickly if the estate executor is stealing. State laws set a window during which heirs can take action against an estate executor. A will executor is responsible for managing a deceased's person's estate, and she is named in the will itself by the deceased person.

How to Change the Executor of an Estate

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.

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

Related articles

What Can Be Done to Force an Executor to Finalize an Estate?

An executor is a person appointed by a probate court to administer a decedent's estate. An executor has a legal duty to ...

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 ...

Reasons to Remove an Executor in PA

An executor is the person named in a will to carry out a person's wishes after death. As the name suggests, the ...

When Does a Will Go to Probate?

Probate is the process of administrating a testator’s estate by settling any claims against the estate and dividing ...

Browse by category
Ready to Begin? GET STARTED