Upon writing and completing a valid will, the testator will also appoint an executor or personal representative to implement the document as per the testator’s instructions when they pass.
As such, the personal representative has several very important fiduciary responsibilities to ensure they act in accordance with the law and wishes of the one who made the will.
For example, upon the passing of the testator, the executor must inform all the mentioned beneficiaries of the estate and act in their best interests.
In addition, they will also be responsible for accumulating the assets in the estate, calculating and paying off the testator’s creditors and other essential liabilities, paying taxes, and more. This will all be a part of the probate process after which, finally, the estate will be distributed amongst the beneficiaries.
However, it is also vital to note that unless the will is directly dependent on the court system, requiring oversight by a judge, the executor will not be bound to any type of supervision.
While this benefit can help provide beneficiaries with a comparatively quicker and possibly more affordable process, keep in mind that there will always be room for the personal representative to act unfaithfully.
Let’s imagine for a minute that your father just passed away, leaving your brother as the personal representative of his will. But as days pass, you gradually come to the notion that your brother is possibly using the funds from your father’s estate to buy things for himself or finance his business or anything of that manner.
In this case, what are your options? How are you going to stop your brother from defrauding you and other beneficiaries? The answer is that you can have the executor removed.
Grounds for Removal of a Personal Representative
Not Being Able to Fulfill the Responsibilities Entrusted to Them
Whether intentional or out of incompetence, if an executor is seen to falter in their responsibilities and duties, which they are legally mandated to enact, the beneficiaries of the will can move to have them removed as the executor of the will.
Negligence and Misconduct
If you can scrounge up actionable evidence that clearly highlights the personal representative’s negligence and misconduct – such as using the funds for themselves, getting the titles of assets in their names, or embezzling assets, etc., or plans to do it in the future, you can request the court to have the executor removed.
In addition, the personal representative can also be removed if the court sees that they have intentionally or unintentionally misplaced assets have exhibited profoundly misleading tactics or demonstrated gross misconduct.
However, it is important to know that the evidence must be reasonable. Simply disagreeing with how the executor is doing things will not be enough to remove them.
An Apparent Conflict of Interest
Conflict of interest is another important variable that can help you have the executor removed. If the personal representative exhibits actions that conflict with the will and are solely benefiting them materially, you can ask the court to remove the executor.
For example, the will mentions that the family house must be sold with the proceeds distributed amongst the siblings. However, your brother (the executor) decides to move into the family house with his children and does not sell the property.
Incapacity
To fulfill their duties, a personal representative of the will needs to be of sound mind. If, for some reason, while performing their duties, the executor becomes incapacitated due to a medical condition or anything else, the rest of the beneficiaries can request the court to have the executor removed.
Evidence That You Will Need to Present to Have a Personal Representative Removed
First, know that only the beneficiaries or people directly involved in the execution of the will can have an executor removed from their duties. For example, apart from the heirs of the estate, even creditors can file a contention against the personal representative.
However, the parties will need to bring forth compelling evidence that shows misconduct, negligence, embezzlement, or anything thing of the sort.
For example, if the testator appointed an executor who is not soundly literate or tells you that they are not going to be doing any accounting of the estate or proceeds to distribute funds or estate to people not mentioned in the will, they can and should be immediately removed.
Getting Rid of an Inadequate Executor: The Process
If you wish to have the personal representative of the will removed citing concern that they are proving to be ineffective, incompetent, or morally lacking, there are a selection of methods you can use to do so.
The first thing you can do is write a formal letter to the executor, demanding that they carry out their fiduciary duties with utmost transparency and expedience. If the executor pays no heed to the letter and continues demonstrating their inadequacies, the next step you (and the rest of the beneficiaries, if any) should take is to appoint an attorney to enforce the letter of demand with the threat of removal.
If the executor persists, then it is time to file a lawsuit against the executor, taking them to court and having them removed.
When the lawsuit is administered, and till the judge deems that the executor should be removed, the beneficiaries, in the meantime, can appoint a personal executive from among themselves. In addition, they can also choose a third party to take over matters.
However, keep in mind that if the court sees signs of misconduct or any unlawful act committed by the executor, the process may just get lengthier. It is also entirely possible that the court may move to appoint an authorized executor who investigate the wrongdoings and report back to the judge.
Bottom Line
Beneficiaries who suspect or can prove that their executor is making unlawful decisions or making matters worse due to incompetence should quickly move to secure an attorney and have them removed to preserve the value of the estate.
Estate administration attorneys can offer valuable advice and help you create a lawsuit application against the executor to have them removed in the most economical and time-efficient way.