Revocation of an executor filed by a beneficiary

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Once a person is appointed executor of an estate, they are responsible for the proper and timely completion of the administration of the estate, as well as the distribution of estate assets and property to their beneficiaries. Provided the executor understands his duty to the estate and seeks appropriate assistance in this process, the administration of an estate can be completed in a timely manner and the assets distributed appropriately. Unfortunately, it is not uncommon for problems to arise in the administration of an estate. The subheadings below discuss scenarios in which an executor could be removed by the court once a claim is filed by a beneficiary of an estate. This is not an exhaustive list, but rather a discussion of some of the main issues commonly encountered.

Failure to administer the estate in a timely manner

One of the most common problems beneficiaries face is when an executor fails to administer an estate in a timely manner. Although administering the estate is quite a complex process, the executor nevertheless has a duty to administer the estate in a timely and expeditious manner. Unfortunately, sometimes executors simply do not deal promptly with the administration of an estate, but rather take far too long to complete simple processes or fail in their duty of administration.

If an executor fails to administer an estate, an action may be filed with the court seeking the removal of the executor. Typically, the court will set a schedule for the executor to meet after such an action is filed. Provided the executor meets the time limits imposed by the court, that person will likely not be removed from the estate. On the other hand, if the executor absolutely does not respect these deadlines, the revocation can be carried out.

Failure to keep accurate records

Every executor of an estate has a duty to keep accurate books and records of the administration of the estate. Unfortunately, sometimes executors do not retain these records, which could then serve as the basis for their deletion if an action is filed with the Court. In addition to revoking them, the court could enter judgment against the executor for any amount he was unable to account for. These types of actions typically arise during the administration of an estate when executors fail to provide an account of the estate in response to requests from beneficiaries. If an executor is unable to provide this specific information, an action may be brought as set out above, which may result in removal, as well as a surcharge against the executor.

Pooling of real estate and personal property

When an executor administers an estate, they must ensure that separate and distinct estate accounts are maintained. Sometimes executors may make the mistake of depositing estate assets into their own accounts, thereby mixing up those assets. This is a direct breach of an executor’s fiduciary duty to the beneficiaries of an estate and will result in the removal of the executor if the issue is not immediately corrected.

If the estate’s accounts are initially mixed up but corrected with accurate accounting provided by the executor, this may prevent its removal. On the other hand, if the amounts are mixed up and subsequently the executor cannot accurately account for the estates in his personal account, deletion is a certainty. After such a revocation, it is likely that the executor would be overtaxed and a judgment would be entered against him in favor of the estate and his assigns.

Conversion or theft of real estate

One of the most serious issues that would require the immediate removal of an executor would be proof that the executor converted and squandered estate assets for their own use and benefit to the exclusion of estate beneficiaries. The duty of an executor is to collect and collate the assets of the estate and then distribute them to the beneficiaries of an estate after the appropriate state taxes, expenses and liabilities have been settled. If an executor does this correctly, the executor would be entitled to a commission. Under no circumstances, however, can an executor take property from the estate for his own use and benefit to which he is not entitled. Such conduct constitutes theft and would require the immediate removal of an executor. Also, it is likely that criminal charges will be filed in such circumstances.

Any other wrongdoing, including bias

Besides the above topics, there are many other reasons why an executor may be removed from an estate, including

  • A show of partiality by the executor against one of the beneficiaries of the estate.

  • The executor favors one beneficiary of the estate over others and therefore treats other beneficiaries unfairly.

  • Proof that the executor participated in criminal acts unrelated to the estate may also necessitate removal of the executor.

As a general rule, any type of unlawful behavior on the part of the executor, even if it falls outside the scope of the estate, can often result in their removal. Additionally, any conduct that may harm the beneficiaries of the estate or the estate itself may also result in the disqualification of an executor. Obviously, this is a very broad field and its case is specific.

The paragraphs referenced above give several reasons why an executor may be disqualified from serving in his role for an estate. This list is not exhaustive and is simply intended to discuss issues that commonly arise. If there is concern that an executor is acting improperly or should be disqualified, an attorney should be consulted to determine the appropriate action, if any, to take. Certainly, if there is a problem that requires immediate attention, you should not sit idly by while the executor potentially permanently harms the estate.

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