How to Stop Estate Executors That Steal Everything

By Rob Jennings J.D.

The executor of an estate is generally a person the deceased named in his will, a person who submits the will to probate and then obtains control of the deceased's affairs by qualifying as his personal representative. The executor has a fiduciary duty — a duty of trust and integrity — to the estate's beneficiaries. While most people try to appoint trustworthy individuals as their executors, the case sometimes arises where a dishonest executor needs to be removed.

The executor of an estate is generally a person the deceased named in his will, a person who submits the will to probate and then obtains control of the deceased's affairs by qualifying as his personal representative. The executor has a fiduciary duty — a duty of trust and integrity — to the estate's beneficiaries. While most people try to appoint trustworthy individuals as their executors, the case sometimes arises where a dishonest executor needs to be removed.

Compel an Accounting

If you are an interested party and you suspect an executor of dishonest behavior, you have the option of filing a motion with the probate court to compel an accounting of all property of the estate. If you prevail, the executor will have to show what property of the estate has come under his control and what he has done with it. Forensic accountants or other financial professionals can examine the accounting in an effort to detect mismanagement, neglect or outright stealing.

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Motion for Removal

Executors must manage the estate for the benefit of the named beneficiaries under the will. This position requires not only trustworthiness and honest handling of estate property but also prompt and competent handling of that property in order to maximize the value available for beneficiaries. If the court feels that the executor's mishandling of the estate is serious enough, it can order his removal from that position. The court would then have to appoint someone honest enough and capable enough to serve as executor of the estate.

Civil Action for Damages

In some cases, you may be able to sue the executor personally in civil court for negligence, breach of fiduciary duty or fraud. If you succeed, the executor's personal assets may be available for seizure to help compensate the estate and its beneficiaries for their losses due to the executor's misdeeds. If you become a successor to a misbehaving executor, one of your first duties may be to pursue that individual in order to recover value for the estate.

Executor's Bond

Since the opportunities for theft, self-dealing, mismanagement and neglect are many in the job of executor, state law often requires executors to post a bond at an early stage in the probate proceeding. A bond is a guarantee, generally provided by an insurance company, that there will be funds available to compensate the beneficiaries in the event the executor somehow fails in his duties. The amount of the bond usually depends upon the value of the estate. In some cases, however, the testator — the individual who made the will — may have specified that the executor could serve without giving bond.

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An Executor's Duties to a Beneficiary

References

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How to Remove an Executor or Trustee for California Probate

If an executor or trustee fails to perform her various duties, California law allows an interested party to petition the probate court to remove and replace her with someone else. Several types of breach or mismanagement can lead to the removal of an executor or trustee, but the petitioner will need to be able to support his assertions before the court.

Can the Beneficiary Be the Executor of a Will?

Most states do not have any laws against a beneficiary in a will also serving as the executor, or the person charged with overseeing the probate process. In fact, the situation is not uncommon. However, there are several practical considerations to take into account if you name an executor who will also inherit under the terms of your will.

What Happens if Co-Executors of an Estate Cannot Agree?

Prudent estate planning principles might suggest that two heads are better than one, particularly with regard to the appointment of co-executors to administer an estate. The general intention for appointing co-executors is to prevent fraud, self-dealing, and poor administration by requiring two votes on all actions. A problem, however, can arise when the co-executors simply cannot agree on a decision. Third-party intervention is often the only way to resolve a disagreement between co-executors.

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