How To Remove An Executor or Administrator Named in the Will

by | Mar 24, 2016

Missing a family member in a swingWhat is an Executor?

The Executor is the person who is named in a will to manage a person’s estate after they die.  Specifically, an executor’s duties include taking control of the assets of the estate, paying off creditors, and distributing the remaining assets to the beneficiaries listed in the will.  What’s important to note is that even though a will names an executor, the court does not have to appoint that person if it finds them unsuitable for some reason, and, if appointed, that person can later be removed if they fail to do their job properly.

Blocking appointment of an executor

Once the executor files a will for probate, the court has to find them suitable. If the court determines that the individual has an adverse interest or is disqualified due to a felony conviction then it doesn’t have to approve the appointment even though the deceased person requested it in their will. The court can approve somebody else or appoint a third party.

Removing an executor once appointed

Family discussing their deceased's willAfter a person has been qualified and the will has been admitted to probate it doesn’t mean they’re free to do whatever they want. If an executor acts improperly, the beneficiaries can request the court for removal of an executor and appoint a successor.

Failure to make proper distribution

For instance, if an executor has failed to fully distribute the estate after eighteen months, the beneficiaries are allowed to demand an inventory distribution of the assets. If the executor doesn’t provide the accounting or the distribution without providing an explanation reasonable to the court, then the executor can be taken to court to show cause for the delay. If they can’t provide an adequate explanation, then they can be removed, even though the court once found them suitable to serve.

Dereliction of duties or Breach of Fiduciary Duty

You have a fortune! And everyone wants a piece of it. Sometimes, even the executor. If the executor succumbs to the temptation of using estate assets for himself instead of distributing it to the rightful beneficiaries of the estate, then there are mechanisms for removing the executor of an estate and have a successor appointed.

Romano & Sumner Case Study

Family grieving over lossIn one case that I was involved in, Brother 1 executed a will naming Brother 2 as his executor. At the time Brother 1 wrote his will, he and Brother 2 got along fine.  Later the two brothers had a falling out and ended up on opposites ends of a lawsuit involving both of them.  Brother 1 started but never completed changing his will before he died, and Brother 2 filed the will for probate and to appoint himself as executor of Brother 1’s estate. In addition to the obvious conflict of interest, Brother 2 had a criminal record to boot.

I represented the surviving spouse of Brother 1 who was the primary beneficiary of Brother 1’s estate.  We opposed Brother 2’s appointment as executor by telling the court that he was unsuitable even though the will named him as the executor.  After presenting evidence of Brother 2’s conflict of interest and his criminal record, the court agreed with us and said he was unsuitable to serve as executor.

Had Brother 2 been appointed, it is likely he would not have acted in my client’s best interest and may have used the estate assets for his own benefit.  By acting swiftly, we were able to prevent Brother 2 from ever having access to the assets of the estate.

Consult An Experienced Attorney

We always recommend you seek the counsel of an experienced probate administration or estate litigation attorney if you have any questions about the probate process or about removing an executor.  A qualified estate attorney will guide you toward the right choices for your family and everyone involved.

At Romano & Sumner, we pride ourselves on our ability to assist our clients in navigating complex legal processes like probate or removing an executor. If you have any questions, please feel free to contact us today.