If you are the beneficiary of a will, you must often work closely with the executor of the estate through the process of probate. Occasionally circumstances arise that suggest that the executor is not acting in the best interest of the estate or is not carrying out the wishes of the deceased. In this case, you can make a motion to have the executor dismissed. But you should be aware that courts are often very reluctant to grant such a motion and that the standard of proof is high.
Find out which probate court is dealing with the estate and inquire how much time you have to make a claim. In some states you must enter any contest to the will within six months of the grant of probate.
File an appearance notifying the court that you have an interest in the will and wish to be kept informed of any matters relating to the probate.
Document actions you believe the executor has taken that give you grounds for seeking his dismissal. Gather evidence of any wrongdoing or dishonesty on the part of the executor. You cannot merely state that the executor is dealing with the estate in a way of which you do not approve; you must have evidence of actual malfeasance or of his inability to carry out the duties assigned to him.
Consult with an independent lawyer not currently involved in the probate and discuss your concerns. If possible, find an attorney who specializes in contesting wills, as this is a very tricky area. She will be able to determine whether you have sufficient grounds for requesting a dismissal, and she can help you with both filing your petition and making an appearance before the court.
Petition the probate court for removal and replacement of the executor.
Attend the hearing that will be scheduled by the probate court for the consideration of your petition.
- Wills & Trusts Law Firms: Changing or Removing an Executor of a Will
- Free Advice: Removing the Executor of a Will
- All About Money: Executors
- Lawyers: Grounds for Will Contests
- Federal Trade Commission Consumer Information. “Debts and Deceased Relatives.” Accessed March 4, 2020.
- The Judiciary State of Hawai‘i. “Hawai'i Probate Rules.” Accessed March 4, 2020.
- Virginia Law. “Code of Virginia, § 64.2-452. How Will May Be Made Self-Proved; Affidavits of Witnesses.” Accessed March 4, 2020.
- Utah Courts. “Civil Terminology for Utah Interpreters,” Pages 20-21. Accessed March 4, 2020.
- Iowa Trust Code. “Chapter 633A,” Page 20. Accessed March 4, 2020.
- Utah Code. “Employment of Appraisers,” Page 24. Accessed March 4, 2020.
- The Superior Court of California, County of Santa Clara. “Closing and Distributing the Probate State." Accessed March 4, 2020
- Michigan Legislature. “700.3801 Notice of Creditors.” Accessed March 4, 2020
- Alaska Court System. “How Long Does a Creditor Have to Make a Claim Against the Estate?” Accessed March 4, 2020.
- Internal Revenue Service. “Filing Estate and Gift Tax Returns.” Accessed March 4, 2020.
- The Superior Court of California, County of Santa Clara. “Closing and Distributing the Probate State." Accessed March 4, 2020.
- New York State Unified Court System. “When There Is No Will.” Accessed March 4, 2020.