what is considered for an attorney to be removed from as an estate executor

by Justus Morissette 9 min read

A petition to remove an executor, or an application to remove an executor, is a legal motion filed with a probate court

Probate court

A probate court (also called a surrogate court) is a specialized court that deals with matters of probate and the administration of estates.

on behalf of an interested party to a will or estate. A petition for removal alleges that the current executor is unfit for their position due to negligence, misconduct, or incapacity.

Full Answer

What does executor of estate mean?

What is the purpose of an executor of an estate?

What is the purpose of an estate bank account?

Can an executor of an estate be compelled?

Does an executor have to pay creditors?

Who is responsible for estate tax payments?

Do you have to keep the probate court informed of the deceased's property?

See 4 more

About this website

15 Primary Roles and Duties of an Executor - executor.org

Here are your 15 primary duties as executor: 1. Learn about the Role and Responsibilities of an Executor. Before you dive, head-first, into your executor duties, it makes sense to understand what your executor role will entail.

How to File to Be Executor of an Estate Without a Will - FindLaw

When someone dies without a will, probate court can select someone as a court-appointed representative, known as an administrator. FindLaw shows you how to file for executor of an estate without a will.

Why Would You Want an Executor Removed from an Estate?

An executor is supposed to carry out the intentions of the will and handle the estate in good faith. The executor may not do it perfectly, and the executor is under no obligation to change their performance to the liking of the beneficiaries.

What does "fair" mean in estate?

to be fair to the estate. For example, if the executor of an estate also happens to

Can an executor be removed?

Any interested party that wishes to remove an executor would have to petition

Can you replace an executor when the testator dies?

testator has died. It’s fairly easy to replace an executor when the testator is still

What happens if you remove an executor?

In an executor removal proceeding, the beneficiaries ask the court to appoint a different executor. If the court finds fault with the executor, he or she will be removed and possibly forced to make restitution for improper gains. If the executor is removed, the court may replace them with the person who applied for their removal, a closer relative, or someone from the court’s list of executor who offer their services to the public.

Who is the executor of a will?

An executor is named by the testator ( the person who made the will) at the time a will is made. The executor cannot fail to carry out the wishes and intent of the testator and cannot act in bad faith, fail to represent the best interests of the beneficiaries at all times during the existence of the estate and fail to follow the terms of the will. And most importantly, the executor cannot steal from the estate. If an executor fails to follow those rules, the court can remove the executor.

What are the penalties for stealing from an estate?

There are significant penalties for stealing from an estate. The court can discharge the executor and replace them with someone else, force them to return the money and take away their commissions. There can also be criminal a penalty, but most estate theft allegations do not escalate to criminal prosecution.

What does "mismanage" mean in estate?

Mismanage an estate business or sell it below market value, whether to himself or to someone else

Can an executor be removed from an estate?

An executor can be removed if he violates his fiduciary duty to the estate and its beneficiaries. As person with the legal power to manage someone else’s property, an executor is a fiduciary. This is a special role that comes with many responsibilities. The executor is responsible for proper management of the estate, and does not have the right to get a benefit at the expense of the estate’s beneficiaries. Unfortunately, some executors don’t perform their fiduciary duties and need to be removed from their position.

Can an executor transfer property to himself?

Self-dealing. The executor cannot transfer estate property to himself because the property belongs to someone else unless he pays the full price for it. As explained above, doing so can be interpreted as stealing and can lead to an array of legal woes. A smart executor would want to avoid transferring estate assets to himself, even if paying fair and market value. If beneficiaries are getting more money than they would have, if not for the executor buying them out, the executor should explain it to the beneficiaries. For example, the executor can explain the savings on transaction costs, such as not having to pay a broker. There must be a feeling that the executor fulfilled his responsibilities to the beneficiaries.

Can an executor use estate funds?

Using estate funds for personal expenses. The executor can only use estate funds to pay the legitimate expenses of the estate, taxes and legal fees.

Why retain an attorney for executor removal?

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 .

How to remove executor?

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.

What is the discovery process in a court case?

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.

When can a fiduciary be removed?

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.

What happens if the executor does not alter his behavior?

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.

Can an executor be removed?

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.

Who pays the attorney in a removal case?

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.

Who is the executor of a will?

An executor is someone who the testator (the person drafting a will) appoints to pay their final debts, preserve the value of their assets and to distribute those assets upon their death. Estate planning attorneys generally advise their clients to pick someone who is both trustworthy and responsible for this role.

What happens when an executor fails to do what they are supposed to do?

When the executor fails to do what they’re supposed to, their beneficiaries may ask a judge to have them removed from their role. Individuals must be “of standing” (someone with a vested interest in the matter) in order to be eligible to petition a probate judge for the removal of an executor in the case.

What happens if the testator doesn't list anyone else to assume this role?

If the testator didn’t list anyone else to assume this role, then the judge will hold a hearing to appoint a new executor in alignment with Ohio law. The role of executor of another person’s estate is a huge responsibility.

Can someone be an executor of an estate if they are convicted of a felony?

Someone who is convicted of a felony may also be considered inappropriate as an executor. It’s not considered to be a conflict of interest, however, if the executor also happens to be a beneficiary of the estate — provided that they administer the estate in a trustworthy and financially prudent way. All beneficiaries must be notified ...

What does executor of estate mean?

The Executor of Estate may sound like a pro wrestler name, but there’s nothing fake about this legal concept. It’s how lawyers refer to the person appointed in a will to make sure the author’s wishes are met. Maybe you’ve been asked to serve as the executor for a friend or family member, and you’re wondering how it all works. Or you might be researching how to make a will for yourself and wondering how to choose the best person as an executor for your own estate. Either way, you’ll want to read up here about how this whole thing works.

What is the purpose of an executor of an estate?

But an executor’s first goal should be to steer clear of legal troubles, both for their own sake and that of the estate and its beneficiaries.

What is the purpose of an estate bank account?

To protect yourself and keep everything legal and aboveboard, it’s worth considering opening a bank account designated specifically for conducting estate business.

Can an executor of an estate be compelled?

The court can’t compel anyone to take on the job of executor of estate. It’s a time-consuming project, it can potentially involve financial risk, and it’s customary to compensate anyone taking it on with pay from the estate itself. The court has to find out whether the person named is up for it. If the probate judge confirms that whoever the testator named is willing to serve, the search for an executor is over! But what if the person nixes the whole idea? Proceed to step 5.

Does an executor have to pay creditors?

Timing matters. No executor worth the name will refuse to pay legitimate creditors or hold back payments to beneficiaries as laid out in the will. Often it will be necessary for an executor to put the testator’s property up for sale in order to settle debts or pay beneficiaries. In that case, an executor is expected to have the assets independently appraised to ensure they’re sold for a fair market price at maximum benefit to the estate.

Who is responsible for estate tax payments?

For especially large estates, there might be a federal estate tax event. If so, the executor is responsible for getting that payment made.

Do you have to keep the probate court informed of the deceased's property?

Rental properties will also need oversight, including the collecting of rent and/or listing for sale. And be sure to keep the probate court informed of all such actions if you take them.

What are the potential conflicts with the executor?

In addition to potential conflicts over Executor compensation and/or attorney fees, other conflicts may arise from the designation of the attorney as the Executor, including potential conflicts with other family members who may also be clients of the attorney. It is recommended that the attorney send you a written confirmation ...

Can an attorney be a witness to a will?

In order to avoid the appearance of impropriety, the attorney may elect not to be a witness to the Will. In some cases, another attorney may be asked to handle the execution of the Will, or another notary public may be asked to acknowledge your signature.

Is it legal to name an executor of an estate in New Hampshire?

Many clients ask if they should name their attorney as the Executor of their Estates. Although this practice has been commonly accepted in New Hampshire for many years, it is not required or even recommended for most clients.

Can an executor be a co-executor?

Whether or not the attorney is designated as the Executor or as a Co-Executor, another attorney may be retained to represent the Estate. Most clients anticipate that the designated attorney will serve as both the Executor and counsel to the Estate, unless another attorney is needed for any reason, such as counsel to handle ...

Does New Hampshire have a standard commission for executors?

Although professional fiduciaries generally publish a fee schedule for their services, New Hampshire does not have a standard commission for Executors. You should ask how your attorney will charge for services as the Executor. Under New Hampshire law, Executor compensation is subject to Court approval. If an Estate is closed informally ...

Is executor compensation subject to court approval?

Under New Hampshire law, Executor compensation is subject to Court approval. If an Estate is closed informally through a motion for summary administration, however, these fees will be subject only to the approval of the beneficiaries of the Estate.

Can you execute a will without an attorney?

Of course, you may always execute a new Will at any time, whether or not you have previously designated your attorney as the Executor. As with all aspects of your estate plan, changes should be considered periodically as your circumstances change.

What does executor of estate mean?

The Executor of Estate may sound like a pro wrestler name, but there’s nothing fake about this legal concept. It’s how lawyers refer to the person appointed in a will to make sure the author’s wishes are met. Maybe you’ve been asked to serve as the executor for a friend or family member, and you’re wondering how it all works. Or you might be researching how to make a will for yourself and wondering how to choose the best person as an executor for your own estate. Either way, you’ll want to read up here about how this whole thing works.

What is the purpose of an executor of an estate?

But an executor’s first goal should be to steer clear of legal troubles, both for their own sake and that of the estate and its beneficiaries.

What is the purpose of an estate bank account?

To protect yourself and keep everything legal and aboveboard, it’s worth considering opening a bank account designated specifically for conducting estate business.

Can an executor of an estate be compelled?

The court can’t compel anyone to take on the job of executor of estate. It’s a time-consuming project, it can potentially involve financial risk, and it’s customary to compensate anyone taking it on with pay from the estate itself. The court has to find out whether the person named is up for it. If the probate judge confirms that whoever the testator named is willing to serve, the search for an executor is over! But what if the person nixes the whole idea? Proceed to step 5.

Does an executor have to pay creditors?

Timing matters. No executor worth the name will refuse to pay legitimate creditors or hold back payments to beneficiaries as laid out in the will. Often it will be necessary for an executor to put the testator’s property up for sale in order to settle debts or pay beneficiaries. In that case, an executor is expected to have the assets independently appraised to ensure they’re sold for a fair market price at maximum benefit to the estate.

Who is responsible for estate tax payments?

For especially large estates, there might be a federal estate tax event. If so, the executor is responsible for getting that payment made.

Do you have to keep the probate court informed of the deceased's property?

Rental properties will also need oversight, including the collecting of rent and/or listing for sale. And be sure to keep the probate court informed of all such actions if you take them.