When a person drafts a will, they name an executor who will be responsible for the distribution and closing of their estate. While most executors complete their responsibilities with care and attention to detail, there are some who make mistakes – accidental or even intentional. This can significantly impact anyone set to benefit from the estate.

What is an Estate Executor?

An executor, sometimes called a personal representative, is responsible for overseeing any issues related to an estate. This can include distributing assets to beneficiaries or settling any debts or liabilities. They are responsible for following the instructions left in the will and carrying out any final wishes. The named executor is typically a family member or a close friend of the decedent (the person who drafted the will). It could also be an attorney or other qualified individual. If a person passes away without a will in place, the court may appoint someone to administer the will and manage the estate.

Filing a Lawsuit Against an Estate Executor

An estate executor can be named in a civil claim or a lawsuit involving the estate. The executor would not be liable for everything related to the estate – he or she would be liable for damages that were the direct result of their actions or inactions while managing the estate.

A beneficiary or an estate creditor can file suit against the executor to settle any debts. So, for example, let’s say a grandchild was supposed to receive a specific piece of artwork or a vehicle, but the executor did not distribute that asset as per the instructions in their grandparent’s will. Or, as a second example, the decedent owes money to a company or a financial institution and the executor managing the estate does not pay those bills. Both the beneficiary from example #1 and the creditor from example #2 could file suit against the executor for failing to carry out their responsibilities.

The beneficiaries of the estate could also sue the estate executor for breach of fiduciary duty. Estate executors have a fiduciary duty to act in the best interest of the estate and to exercise due care. If the executor fails his or her duty, they could face a lawsuit. Some examples of breach of fiduciary duty include:

  • Not maintaining accurate records
  • Not communicating with the beneficiaries
  • Selling assets for less than their true value due to poor valuations
  • Failing to sell property in a timely manner; keeping assets for themselves
  • Not distributing property as intended
  • Distributing money or assets to the incorrect beneficiaries or creditors
  • Theft
  • Conflict of interest; acting in own interests

Asking the Court to Remove an Estate Executor

In addition to filing a lawsuit against an estate executor, family members and beneficiaries can also petition the court to remove an executor. If the loved ones notice that the estate executor fails to uphold their duties, they can ask the court to remove the current executor and name a replacement. Typically, the party would have to file a request with the court, provide a valid reason for removal, and provide the court with supporting evidence. Examples of valid reasons for removal include: incompetence, fraud, misconduct, endangering the assets, favoritism, conflict of interest, or hostility to beneficiaries.

Have Additional Questions? Contact Our Estate Planning Team

If you or a loved one has a dispute with an estate executor, it is best to discuss the issue with an experienced probate attorney. These types of disputes can be complex, and an attorney can advise you on the current laws and your best course of action. If you have any additional questions or would like to speak with someone on Brian M. Douglas & Associates’ probate team, please contact us at (770) 933-9009 or via our online contact form. We would be happy to help.