An executor's job is to administer a will fairly, honestly and competently. He's liable according to civil law if he breaches his responsibilities to the estate and the heirs. An executor stands in a fiduciary relationship with the heirs: He owes them the highest possible duty of good faith and fair dealing, a duty that precludes any bias of self-dealing. If you have evidence of fraud, embezzlement or any breach of fiduciary responsibility, it's time to hire an attorney.
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Determine whether you have a complaint against the executor personally or whether you have an issue against the estate. The executor is both the manager of the estate during the period it's in probate and also the representative of the estate. In certain jurisdictions, those having unresolved disputes with the deceased file suit against the executor. An executor is personally liable for illegal or improper estate administration.
Determine whether you have standing to sue. Generally, states require that a person have a pecuniary interest in an estate --- that she stands to inherit under the will --- to bring litigation involving conduct of the estate. If you're a minor or otherwise legally incompetent, an adult must sue on your behalf.
View your complaints against the executor as dispassionately as possible. Evaluate your chances of success in your suit. Courts usually grant an estate administrator great discretion in making timing and investment decisions; litigation to speed matters up or to require an executor to change his management process will likely fail. Fraud, self-interest, conflict of interest and embezzlement are valid grounds for bringing a suit.
Decide on the appropriate forum. If the probate is ongoing, estate issues must usually be brought before the probate court judge. If probate has closed, you must bring suit in state civil court. Visit the local law library and ask for help determining the best forum.
Check with an attorney specialising in the type of litigation you contemplate for a second opinion on the substantive and procedural issues. Even if you decide to proceed without an attorney, advice at this stage can preclude substantial problems later.
Gather the appropriate forms to commence litigation. Fill in the forms and file the action. Courts usually require a filing fee from someone initiating an action.
Tips and warnings
- Gather as much evidence as possible to support your claims before reviewing the matter with an attorney. If she can inspect the evidence at the first meeting, you reduce the time she spends on your case and, as a result, the fee you owe.
- No lawsuit is easy for a layperson to conduct, and actions against an estate executor raise complex probate and civil law issues. Consider turning the matter over to an attorney.
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