A petition to remove an executor, or an application to remove an executor, is a legal motion filed with a 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.
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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.
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.
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.
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
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.
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.
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.
Mismanage an estate business or sell it below market value, whether to himself or to someone else
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.
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.
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.
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 .
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.
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.
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.
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.
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.
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 ...
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.
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.
To protect yourself and keep everything legal and aboveboard, it’s worth considering opening a bank account designated specifically for conducting estate business.
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.
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.
For especially large estates, there might be a federal estate tax event. If so, the executor is responsible for getting that payment made.
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.
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 ...
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.
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.
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 ...
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 ...
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.
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.
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.
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.
To protect yourself and keep everything legal and aboveboard, it’s worth considering opening a bank account designated specifically for conducting estate business.
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.
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.
For especially large estates, there might be a federal estate tax event. If so, the executor is responsible for getting that payment made.
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.