Any solicitor who has been appointed as Executor is under no legal obligation to renounce their position (resign). However, you could simply try contacting them directly and request that they renounce their position as Executor of the Will.
If you are seeking to remove an Executor your case will be heard before a court with unique procedures and rules. Your case must be organized and presented in a specific manner. Evidence must be gathered through witness interviews, depositions and documents secured by subpoena. If deadlines are missed, your case will be dismissed.
Retaining an attorney experienced with Executor removal will save time and money. An experienced Estate Litigation Attorney will assemble and present the evidence so the judge can properly rule as quickly as possible.
A court can always remove an executor who is dishonest or seriously incompetent. Please answer a few questions to help us match you with attorneys in your area. By clicking “Submit,” you agree to the Martindale-Nolo Texting Terms.
Many executors are able to wrap up an estate themselves, without hiring a probate lawyer. Many executors decide, sometime during the process of winding up an estate, that they could use some legal advice from a lawyer who’s familiar with local probate procedure .
If you are seeking to remove an Executor your case will be heard before a court with unique procedures and rules. Your case must be organized and presented in a specific manner. Evidence must be gathered through witness interviews, depositions and documents secured by subpoena. If deadlines are missed, your case will be dismissed.
Retaining an attorney experienced with Executor removal will save time and money. An experienced Estate Litigation Attorney will assemble and present the evidence so the judge can properly rule as quickly as possible .
This discovery process may include depositions, interviews and interrogatories of the existing executor as well as financial advisors, beneficiaries, bankers or physicians. This evidence must be presented to the judge in an orderly fashion. An experienced attorney familiar with the court and its procedures best handles this process.
The court can remove a fiduciary, such as an Executor, when the court believes that the Executor has taken action counter to the beneficiary’s best interest breaching their fiduciary duty.
If the Executor will not alter his behavior and correct any damage to the interested person’s satisfaction, the judge will hold a hearing. At this hearing, the Estate Planning Lawyer will present the evidence gathered, using the court’s Rules of Evidence and Procedure.
Judges take Executor removal seriously, and will only accept evidence if your team has followed proper procedures. Further, Executors are free to use Estate funds to defend themselves. If not countered by an experienced attorney, the fiduciary can use procedural steps to draw out the process and increase costs. An experienced Executor Removal Attorney can assess the situation and help avoid pitfalls. In the end, the experience will save you money.
The interested party pays the attorney, but if the removal action is successful, the judge may order reimbursement from the estate. The Executor may also hire an attorney. The estate pays this attorney, but if the judge removes the Executor for bad acts, such as Breach of Fiduciary Duty, the judge may order the Executor to repay the amount given to the lawyer.
If the issue is something along the lines of failure to return an inventory and list of claims to the court, the executor will receive 30 days’ written notice.
When someone is named as the executor of an estate, they have a fiduciary duty to act in the best interest of all heirs and creditors. This includes gathering assets, notifying beneficiaries and creditors, paying taxes and valid claims and, finally, distributing the remaining property to those entitled to receive them.
When an executor fails to act in good faith when making decisions and distributions, beneficiaries can take action. In Texas, there are recognized grounds for removal of an executor.
Incapacity. If incapacity prevents the executor from performing their duties, the court could order them removed. This includes mental or physical incapacity and, in Texas, incarceration in a penitentiary.
If you believe that an executor has breached their fiduciary duty, you can request an accounting of the estate 15 months after their appointment. The executor will have to provide all heirs with information about the condition of the estate, including: What debts have been paid. What assets have been distributed.
These duties include collecting and safeguarding the assets of the estate, filing an inventory of the estate’s assets and claims with the probate court within 90 days unless the court grants an extension, and, after paying any debts of the estate, distributing the estate’s remaining assets to the beneficiaries of the estate.
If you have sufficient evidence to believe that the executor has misapplied or embezzled estate assets (or is about to do so), they can be removed. The court will also remove them if they exhibit gross misconduct or mismanagement in the performance of their duties. Note the use of the term “gross”: the executor’s actions must be highly egregious. It cannot be a simple case of you not agreeing with their decisions.
If you believe you need to take action to remove the executor of an estate, contact the Curley Law Firm. Skilled estate planning lawyer, Adam Curley, can help you protect an estate from mismanagement and hold the executor accountable for any wrongdoing. Call or fill out an online form today to schedule a case evaluation.
If you believe an executor’s actions require removal, you can file a petition asking the court to remove and replace the executor and explaining the grounds for removal.
If your petition is based on some form of misconduct, you can also ask the court to order the executor to file a formal account. This will allow you to determine whether and to what extent the estate has been damaged by the executor’s actions.
An executor’s responsibilities include: Identifying and collecting the estate’s assets, Managing and protecting the estate’s assets until they are distributed, Notifying creditors of the decedent’s death and paying debts, Locating and notifying beneficiaries, Paying taxes, Accounting for all assets and payments, and.
An experienced estate planning lawyer can assist you with this process and help protect the interests of the estate and its beneficiaries.
The executor of an estate is appointed to carry out a decedent’s final wishes and to protect the interests of the beneficiaries. But sometimes an executor fails to fulfill their duties. They may get caught up in their own interests or neglect their responsibilities.
Since the executor can fund their defense using estate assets, they can afford to drag out the process and make it difficult for you to hold them to account. With a skilled estate planning attorney in your corner, you will be in a much better position to protect the estate from mismanagement and wrongdoing.
Executors are people. They often had a close relationship with the deceased. They are often going through a difficult time in their lives and sometimes they don’t cope well with it. The result is that sometimes they lash out. They can be angry, frustrated or overwhelmed with the estate and the result is that they act irrationally. They yell and scream at or threaten beneficiaries. The result is never good and at times gets out of hand in the form of harassment or improper conduct.
1. Holding up Distribution. Executors are responsible for ensuring that the estate is run as efficiently as possible. It is their job and their job alone to ensure that the estate pays the bills (such as taxes and probate fees) and brings in the cash (as much income as possible).
Another way that an executor can cost the estate money is by hiring and firing a number of different professionals. For example, if the personal representative hires an accountant and then fires the accountant, money will have been wasted on their work. Money can also be wasted where the executor refuses to provide the accountant the information they need to do their job. The same thing can happen on occasion with lawyers, investment advisers, trust companies and realtors. Acting in this way may lead the court to find that the executor is incompetent (see Dirnberger Estate, 2016 BCSC 439)
This all has to happen within a reasonable amount of time. Two years to be exact.
When the estate has a claim against the executor or a closely related person. They have a duty to prosecute that claim but may have a personal wish not to bring it (see Kyle Estate  or where the estate had to defend in Levi-Bandel v. McKeen, 2011 BCSC 247 ).
An executor’s first and foremost duty is to the estate and all of the beneficiaries. That is the paramount rule. There are no exceptions.
Failing to act reasonably in getting the estate to distribution can get the executor booted.
An executor is supposed to carry out the intentions of the will and handle the
to be fair to the estate. For example, if the executor of an estate also happens to
Any interested party that wishes to remove an executor would have to petition
testator has died. It’s fairly easy to replace an executor when the testator is still
The heirs and beneficiaries damaged as a result of this breach can file a lawsuit against the executor or trustee. Under some circumstances, the executor or trustee can be held personally liable for the loss.
The critical question most often asked by a judge when a request is made is to remove an executor/administrator is “whether the circumstances are such that the continued involvement of the estate fiduciary is/would be detrimental to the interests of the estate”. Mere friction between an executor and beneficiary is not a ground for removal ...
If the executor or trustee has failed to keep records, fails to keep beneficiaries informed or if they have failed to keep estate property separate from their own, a breach of their fiduciary duty is presumed.
When an executor or trustee profits from or abuses his or her position, fails to communicate and disclose information to beneficiaries he or she may have breached their fiduciary duty to both the estate and its beneficiaries. A failure to safeguard estate assets that causes a loss to the heirs and beneficiaries may also be a breach ...
Executors and administrators have a duty to keep all estate assets separate and identifiable, and to account to the beneficiaries for all monies coming into and going out of their possession. For estates subject to probate, the court will not allow the process to end until a satisfactory accounting is complete.
An executor’s job is defined by New Jersey statutes. He or she must probate the Will, create an inventory of everything owned by the decedent, manage the estate, take care of tax matters, pay debts and distribute estate assets to beneficiaries. In larger estates this role can take years to complete. During this time legal and tax issues may develop ...
But the beneficiaries must take action. They cannot just sit back and complain . That won’t get them anywhere. A court will order an executor/administrator to account if they do not do so, unless all the beneficiaries agree to waive such an accounting.
Additionally, a lawyer will tell the executor of a will if the will has to go into probate, meaning, a judge has to find the will is valid and that the person named executor is qualified to serve.
Simply put, an executor of a will is someone who manages the deceased person's estate, according to Sam Safi of Safi Law Group. When a person dies, most of their assets and liabilities get transferred to their estate, and then the executor's job is to "settle all outstanding issues of the estate (including paying off creditors) ...
How to Protect the Deceased Person's Wishes. As the executor of a will, it is your responsibility to ensure that the deceased person's wishes are being upheld and you're taking your executor of a will checklist seriously. "When someone dies, often, family and friends feel that they can go into their house to collect items ...
I've Been Named the Executor of a Will. Now What? by Kylie Ora Lobell
Since executor of a will duties are so complex, Safi said that usually, an executor will seek out an estate lawyer to provide assistance. A lawyer will be able to let the executor of a will know if a will is valid and meets all the requirements of the state, according to Brent Morgan of The Morgan Law Office.
However, Safi pointed out, if someone passes away without a will, then one of their close family members can apply to the court to become the executor of the estate before legally administering it.
The executor of a will is responsible for carrying out a deceased loved one's wishes. If someone named you the executor, you'll need to learn more about what your role will be, which includes ensuring their assets are distributed to the beneficiaries.
But if it looks like there won't be enough money in the estate to pay debts and taxes, get advice before you pay any creditors. State law will set out the order in which creditors get priority, and it's not always easy to figure out how to parcel out the money. The estate won't owe either state or federal estate tax.
No one is fighting. If disgruntled family members want to contest the will, or are threatening a lawsuit over the will, get a lawyer's help right away. You may be able to head off a court fight—which will consume more money and time than you can probably imagine—or at least figure out how to win it.
The estate won't owe either state or federal estate tax. More than 99% of estates don't owe federal estate tax, so this isn't likely to be an issue. But around 20 states now impose their own estate taxes, separate from the federal tax—and many of these states tax estates that are valued at $1 million or larger. If you will be responsible for filing an estate tax return with the state where the deceased person lived or owned real estate, you should get legal and tax advice. An estate tax return is not a do-it-yourself job.
Probate is easier in states that have adopted the Uniform Probate Code (a set of laws designed to streamline probate) or have simplified their own procedures. The estate doesn't contain a business or other complicated asset.
But you won't need probate if all estate assets are held in joint ownership, payable-on-death ownership, or a living trust, or if they pass through the terms of a contract (like retirement accounts or life insurance proceeds). The estate qualifies for simple "small estate" procedures.
Many executors decide, sometime during the process of winding up an estate, that they could use some legal advice from a lawyer who's familiar with local probate procedure . But if you're handling an estate that's straightforward and not too large, you may find that you can get by just fine without professional help.
Most or all of the deceased person's property can be transferred without probate. The best-case scenario is that you don't need to go to probate court, because assets can be transferred without it. This depends on the planning the deceased person did before death—you can't affect it now.
Bear in mind that your executor will have many duties while taking your estate through probate, including the following: Gathering your estate assets together. Inventorying and valuing those assets. Managing and protecting the assets during probate. Paying valid claims against your estate.
Remember that choosing your executor wisely is just as important as making your Last Will and Testament in the first place. The person you choose bears grave responsibilities that will impact your family and other heirs after you die. This is educational information and not intended to provide legal advice.
As you likely already know, when you make a Last Will and Testament in California, in addition to naming the heirs who you want to receive your property upon your death, you also appoint an executor to carry out your wishes when the time comes.
Attorney as executor. Per the American Bar Association, if you feel that none of your family members or friends possess the requisite financial skills to properly act as your executor, you may wish to designate your attorney instead .