How to Challenge an Executor of a Will Who Is Not Carrying Out Duties

Written by mike broemmel
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How to Challenge an Executor of a Will Who Is Not Carrying Out Duties
Reviewing a last will and testament. (Hand and document at the meeting image by Dmitry Goygel-Sokol from Fotolia.com)

An executor is charged with overseeing and managing the affairs of an estate of a person who died with a last will and testament. She maintains specific duties that must be carried out on behalf of an estate, many on a specific deadlines. These include paying outstanding bills and taxes, inventorying the assets of the estate and making distributions of property consistent with the terms of the will. As an heir to the estate, you have the legal right to challenge an executor you feel is not carrying out her duties and obligations.

Skill level:
Challenging

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Things you need

  • Petition to Remove Executor

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Instructions

  1. 1

    Obtain from the court clerk where the estate case is pending a Petition to Remove Executor. The court clerk likely maintains a variety of petitions and other forms for use by an interested party not represented by legal counsel.

  2. 2

    Complete the petition. One of the major elements of the petition is to establish your legal interest in the estate. If you are named as an heir in the last will and testament, you have a clear legal interest in the estate and its proper management.

    Another contention you must make in the petition is to establish the specific reasons why you believe that executor of the will is not properly undertaking his duties.

  3. 3

    Sign the petition in front of a notary public. Petitions of this nature in probate court must be "verified." Verified means that it is signed on your oath in front of a notary public.

  4. 4

    File the petition with the court clerk.

  5. 5

    Send a copy of the petition to the executor.

  6. 6

    Send copies of the petition to all heirs named in the last will and testament.

  7. 7

    Obtain a hearing date and time on your petition. Either the court clerk's office or the administrative assistant to the judge assigned the case provides a hearing date and time.

  8. 8

    Send a hearing notice to the executor and all heirs.

  9. 9

    Appear at the hearing and present relevant evidence supporting your contention that the executor is not carrying out her duties in a proper manner. Evidence includes testimony of witnesses as well as any documents that support your contention. If you persuade the judge that the executor is failing in regard to her duties, the judge removes the executor and appoints a replacement. A person typically names a backup executor in a will. If there is no such designation, the court appoints another person and will consider any individual you and other heirs recommend.

Tips and warnings

  • Consider seriously retaining the services of a qualified attorney to represent you in your challenge to an executor. These types of proceedings are legally complex and procedurally challenging. Your interests likely are best protected through proper legal representation. Local and state bar associations maintain directories of attorneys in different practice areas. Contact information for these organisations is available through the American Bar Association:
  • American Bar Association
  • 321 N. Clark St.
  • Chicago, IL 60654-7598
  • 312-988-5000
  • abanet.org

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