What If the Executor of the Will Cannot Be Trusted to Be Fair?

The executor of an estate must be honest and fair.

The executor of an estate must be honest and fair.

A person preparing a will names an executor, a person who will be responsible for distributing his property after death and for seeing that all debts and taxes are paid. Probate laws vary by state, but generally the probate court must formally approve the person named as executor. Someone who objects to the executor’s appointment can file an objection with the court.

Require that the executor post a bond. If you have reason to believe the appointed person won’t be fair and that removing him might be impossible, you can petition the court to demand that the executor post a bond. An executor bond is similar to a temporary insurance policy. It is used to ensure that the executor handles the assets of the estate according to law. Some state laws require that the executor post a bond, but the will may stipulate that no bond is required. Objectors can overrule that waiver and request a bond in a specific amount. The prospective executor must apply for a bond from a bond company. If the executor mismanages or steals from the estate, the executor bond repays the estate.

Petition to remove the executor. If you are still concerned about the executor’s fairness, you can attempt to have her removed and replaced. Before the executor has been officially appointed, an interested party -- such as a beneficiary or creditor -- who objects to the appointment should prepare to file an objection. Removing an executor whose appointment has been approved will be more difficult.

Compile your evidence. You must be able to prove that the executor has a conflict of interest that prevents him from being fair and impartial. An objecting beneficiary may need to convince the court that the executor is not physically or mentally competent to fulfill the executor’s duties. Courts generally will not remove an executor unless it can be proved that he is not capable of performing the duties or has seriously mismanaged the estate. Embezzlement, neglect and fraud are also grounds for removal. Unsuitability -- including conflict of interest and inability to perform the job impartially -- can be grounds for removal but could be difficult to prove.

Consult a lawyer. State laws that apply to removing an executor vary, so it is advisable to get help from a lawyer who specializes in probate law. When you petition the court for removal of an executor, you will be expected to appear in court and present evidence, and the executor will be given the chance to respond. Both parties are generally represented by attorneys in court.

 

About the Author

As a long-time newspaper reporter and staff writer, Kay Bosworth covered real estate development and business for publications in northern New Jersey. Her extensive career included serving as editor of a business education magazine for the McGraw-Hill Book Company. The Kentucky native earned a BA from Transylvania University in Lexington.

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