The executor of an estate occupies a position of trust. Therefore, carrying out the testator’s last wishes requires the mental acumen necessary to handle often complex business affairs and a healthy dose of honor.
If you’re an interested party that sees any signs of executor misconduct, your state’s probate code will contain a mechanism for rectifying the situation. And you should not be afraid to use it to safeguard your interests and those of your loved ones.
Can You Make a Claim Against an Executor of The Estate?
For you to claim against an executor of the estate, you must determine whether or not you have the standing to pursue any claims against the executor. Simply disliking the executor is not a good enough reason to make a claim. Instead, one should look out for any red flags that show the executor is ill-equipped to fulfill the testator’s wishes.
If an executor is incompetent or dishonorable, they may do the following:
- Get convicted of a felony
- Mismanage the estate properties
- Refuse to comply with court orders
- Use the funds of the state for personal uses
- Refuse to account for the assets of the estate they are in charge of
- Fail to send a copy of the will to all the beneficiaries
Inheritance law varies from state to state, but as a general rule, the right to file a complaint against the executor is limited to those who have an interest in the probate proceeding. If an executor is administering an estate, this means the deceased left a will. And in that case, actions against the executor are usually limited to spouses and named beneficiaries in the will.
However, even if you are not a named beneficiary, you might have the standing to sue if you could benefit from the will being set aside. If you have a financial stake in the state, you have a right to sue when you see signs of executor misconduct.
Draft a Demand Letter
As a preliminary step, you can draft and send a demand letter clearly identifying your complaint and explaining what you want the executor to do to rectify the situation. The job of the executor is complex and often requires liquidating assets to satisfy claims against the estate. So it could mistakenly appear from the outside that the executor is lining his pockets with the deceased’s property.
The response you receive to your demand letter may clarify misunderstandings which, although easy to explain, could cost both you and the estate thousands of dollars in fees if you pursued the matter legally. And it may also compel the executor to complete the administration process rather than deal with the legal ramifications of not doing so.
If you have no idea how to get started on writing it, you can search online for a sample demand letter to the executor of an estate from a beneficiary and customize it for your own use.
Compel an Accounting
Suppose you are not satisfied with the executor’s response. In that case, you can file a motion with the probate court to compel the executor to render an accounting of estate property, debts, and assets. If the court grants your motion, the executor will have to come forth and show what he’s been doing with the estate property.
If there have been any improprieties, stealing, or mismanagement, a forensic accountant may be able to help you identify this and determine whether further action is necessary. Even if the executor ignored your demand letter, the accounting might reveal no evidence of misbehavior.
Motion for Removal
You can file a motion to have the executor removed from their position, if necessary. But you need to understand that as the moving party, the burden of proof will be on you to show that the executor has engaged in misconduct to such an extent that the court needs to remove him and appoint a new one.
If the misconduct was terrible enough, you might consider filing a separate lawsuit for damages against the executor in an attempt to recover lost value for the estate.
The removal of an executor can be a costly and stressful affair. Therefore, ensure you have substantial proof of the executor’s misconduct before launching the removal process. Otherwise, you may end up in more significant trouble in the end, especially if the executor and other beneficiaries decide to counter sue you.
- All Law: Can the Executor Be Removed?
- Sweeney Probate Law: Common Mistakes an Administrator or Executor Can Make During Probate and How To Avoid Them
- Legal Zoom: Do Executors Have to Give an Accounting to Beneficiaries?
- Legal Zoom: How to Replace the Executor of a Will
- Ohio.gov: Section 2113.18 | Removal of Executor or Administrator.
A practicing attorney since 2003, Rob Jennings has written fiction and nonfiction since 2005, with his work appearing in a variety of print and online publications. He earned his Juris Doctor from the University of North Carolina at Chapel Hill.