The executor of an estate has the fiduciary duty to administer the estate in the best interests of the beneficiaries. In all transactions, they are bound to act in the utmost good faith and cannot further their own interest at the expense of the beneficiaries. At the same time, they cannot deny creditors of the estate their due process. If the executor violates their responsibilities, creditors and beneficiaries can petition the court to remove an executor.
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Get a petition form from the probate court clerk. The petition may also be available online (see Resources).
Prove ineligibility. One reason to have an executor removed is because they were never technically qualified to be the executor. Most states have restrictions on who can administer an estate; for example, felons cannot serve as executors in New York. A strong conflict of interest would also be a disqualification. If new facts have come to light to disprove eligibility, attach this information to the petition form and file it with the probate court.
Prove misconduct. Another compelling reason to have an executor removed is because they blatantly ignored a court order, failed to perform a required duty or mismanaged the estate in a way that resulted in a material loss of assets or value. Embezzlement, mismanagement and fraud are good reasons for an executor be removed. Attach evidence of the misconduct, or a sworn affidavit testifying to it, to the petition and file it with the probate court.
Demonstrate incapacity if an executor is rendered unable to perform their duties while the estate is still open. For example, an executor may be arrested for unrelated crimes, injured or involved in complex litigation.
Define the best interests. The most difficult way to have an executor removed is to show that they somehow administered the estate in a way that is not in the best interest of the beneficiaries. This is difficult to prove because the best interest of the beneficiaries can be difficult to define. Significant waste of estate assets on unnecessary expenses would qualify, but the sale of stocks at an inopportune moment would not.
Request an estate audit to help establish the facts. An audit can also help determine the extent of any waste or fraud.
Tips and warnings
- Interested parties have other recourse besides simply petitioning for their removal. A separate civil action can be brought against the executor for breach of fiduciary duty in an attempt to regain lost or wasted value. An interested party can also appeal the decisions of the probate court should they deny the petition for removal. Depending on the state, this appeal might be handled by the adjacent superior court, or a higher district court of appeal.
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