How to Remove an Executor of a Will

By Teo Spengler

Chosen by the testator -- the person who writes the will -- and nominated in the will itself, an executor administers the will and sees it through the probate process. He gathers and invests assets, handles will contests, pays estate bills and distributes remaining property to beneficiaries. Courts only interfere with the testator's choice of executor in extreme circumstances, such as upon a convincing showing that the executor is incapable of undertaking his duties or that his actions are dishonest or fraudulent.

Step 1

Consider whether you qualify to bring an objection to the executor. Most states only allow an heir to challenge an executor, and a familial relationship or friendship with the deceased is not enough. If you are not an heir, work with an heir to disqualify the executor. Explain your evidence and convince the heir to file an objection in her name.

Step 2

Use precision in identifying any allegations of incompetence. Recognize that your poor opinion of the intelligence or character of the executor will not constitute evidence, nor will vague allusions to recreational drug use or similar habits. Courts presume that the executor is of sound mind, capable of rational thinking, and you must overcome this with compelling evidence of a substantial handicap -- mental, physical or emotional -- that makes the executor incapable of serving. Find evidence that the executor served jail time for criminal conduct or is habitually drunk.

Protect your loved ones. Start My Estate Plan

Step 3

Look for illegal action if you base your challenge on the executor's behavior. The fact that he is impolite, late or disrespectful is irrelevant. The executor owes you and every other heir an extremely high duty of care, termed a fiduciary duty. This duty is equivalent to the duty the law imposes on a lawyer to her client, and obligates the executor to treat you fairly, not courteously. Investigate the executor's actions to find breach of that duty. Look for self-dealing, embezzlement, forgery, lies to the court or flagrant waste. Find evidence that the executor failed to follow a court order or refused to file an accounting. Leave aside arguments that evidence disagreement between yourself and the executor about appropriate investments or timing.

Step 4

Prepare an objection to the executor and timely file it with the probate court. The time frame depends upon the action you contest and probate rules in your jurisdiction. Alternatively, hire an attorney to represent you. The court schedules a trial date once the clerk receives the objection. Prepare your case, amass evidence and locate witnesses. Appear in court on the trial date and convince the court of your allegations. You may receive a ruling after argument, but more likely you will receive a written decision a few weeks later.

Protect your loved ones. Start My Estate Plan
How to Fire the Executor of a Will


Related articles

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, and is named in the will of a deceased person. Probate, the legal process used to sort out an estate, gives the executor authority to perform his duties. You, as an heir of the estate, have the right to contest an executor's appointment if you are concerned about his ability to perform his duties or if you believe the will naming him is invalid. A will may be invalid under your state's laws due to the mental incompetency of the deceased person at the time the will was made, fraud, or the will maker being pressured or coerced into signing the document.

How to Contest a Will Due to Undue Influence

The Supreme Court's statement about pornography -- "I can't define it but I know it when I see it" -- fits the doctrine of undue influence. Every person making a will is influenced by others, but only excessive influence invalidates a will or bequest. Undue influence occurs when a testator’s free will is usurped by the will of another, according to the American Bar Association. Courts hearing undue influence charges look at the relationship between the parties, the susceptibility of the testator and the opportunity of the named heir to exert pressure.

The California Law on Trustee Incompetency

Removing a trustee for incompetence in California can be a painful process for all concerned. Since trustees are presumed by law to be competent, beneficiaries of a trust who want to remove a trustee must prove to the satisfaction of the court that the trustee is incapacitated to the extent he is unfit to serve. Many trustee challenges involve family members, for example, the beneficiaries of a trust created by parents on their children's behalf. Litigation to remove a parent as trustee in such circumstances can be costly, time-consuming and emotionally devastating.

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

Related articles

How to Challenge an Executor of a Will

If the estate is the boat, the executor is the captain. An executor -- termed personal representative in some states -- ...

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 File a Complaint on an Executor's Integrity

The executor of an estate occupies a position of trust; carrying out the testator's last wishes requires not only the ...

How to Contest a Will Due to Alzheimer's

An objection that a decedent was suffering from Alzheimer’s disease and was mentally incompetent when she made her will ...

Browse by category
Ready to Begin? GET STARTED