Selecting your estate executor may seem inconsequential, but it determines how your assets will be treated – and your wishes respected – after you pass away. Sometimes, though, executors act in self-interest and harm an estate’s heirs. No person is immune to the pull of corruption and as such, disputes with estate executors are not uncommon.

If you have recently lost a family member and suspect that the estate executor has failed to handle the probate process ethically, you have legal options, including suing the executor. Here, we will briefly discuss the executor’s duties and responsibilities, and what you can expect if you file a lawsuit against your executor.

The Executor’s Role

An executor is the person in charge of a decedent’s estate – that is, the sum total of a deceased person’s assets. The executor’s role is to manage the estate, in other words, to distribute the right assets to the right people at the right time. The executor is also responsible for paying off the estate’s creditors and making tax payments. Typically, the executor is a family member or close friend of the deceased, but it may also be an attorney or another neutral third party.

The executor’s job is no small feat. As such, an executor has a legal duty to administer the estate in good faith and to act in the best interest of its beneficiaries – usually the heirs of the deceased person – and the creditors of the estate. He or she is also responsible for making sure the decedent’s wishes are honored and must take reasonable steps to fulfill all of the instructions the decedent left regarding his property and assets. In exchange for this work, the executor can be compensated by charging a set percentage back to the estate.

Some of the executor’s specific duties include: 

–       Locating and filing the will and other legal documents

–       Accounting for all estate assets

–       Paying debts of the estate

–       Filing and paying final tax returns

–       Distributing assets to all heirs

Suing the Executor

At times, it becomes clear that the executor isn’t qualified or fit to carry out his or her role. In these cases, family members can raise a dispute and request that the court remove the executor. Beneficiaries of the will can also do this if they believe the executor is acting maliciously or failing to manage the estate assets with care. These are known, generally, as breach of fiduciary duty claims.

To prove a breach of fiduciary duty, you will need to prove that a fiduciary duty existed and that the executor breached that duty. Generally, the existence of a fiduciary duty will not be contested, as it is already established that an executor has a fiduciary duty to the estate and its heirs. As such, you will only need to prove that the executor breached that duty.

Some instances of breach (i.e., bases to remove or replace an executor) include:

–       Failure to transfer estate accounts

–       Fraud

–       Poor investments of estate assets

–       Failure to keep proper records of estate assets

–       Hostility to – or lack of transparency with – estate beneficiaries 

–       Showing favoritism to certain beneficiaries over others

–       A conflict of interest, for example, posed by his role as executor in another estate

–       Failing to pay taxes of the estate

–       Mixing estate funds with personal funds

–       Paying personal bills with estate money

–       Withholding assets from one or more heirs

–       General incompetence 

If you suspect any suspicious activity surrounding the estate or the executor’s actions, you have a legal right to file suit against the executor. The person requesting the executor’s removal has to file a request with the court with a valid reason for removal, along with any evidence. The more specific you are, the better: it is worth compiling a written account of the actions and omissions that made you suspicious, as well as any known errors the executor made.

There are several ways to approach the litigation process against an executor. Generally speaking, the process will start by filing a petition to remove the executor. Other options include filing a petition to have the executor held in contempt of court or filing a civil lawsuit against the executor to recover the assets he or she appropriated. If the assets are not recoverable, you can request damages to compensate you and the other heirs for the loss. In some cases, you may also have grounds to press criminal charges. 

When there are several beneficiaries of an estate, all heirs must agree to sue the executor, and each person needs to present his or her evidence. They also all need to agree to the executor’s replacement. A probate judge may select the replacement executor, or the heirs may propose one.

Estate issues can be complex and highly contentious. As such, it is best to hire an attorney who can help you file a claim and if needed, represent you in court. Also, if you believe you may need to sue an executor, it is vital to document any instances of malfeasance: keep a paper trail of transactions and request a full accounting of the estate assets, along with your personal notes about what you think may be amiss. 

Experienced Fiduciary Litigation Attorneys

FLG is a full-service litigation law firm focused exclusively on fiduciary relationships, from estates and trusts to incompetency and guardianship matters, powers of attorney, will caveats, and business disputes. We represent those accused of breaching their fiduciary duties as well as those alleging financial, physical, or emotional abuse in a sensitive relational context. In all cases, we seek creative solutions to resolve – rather than further inflame – conflict. 

Reach out to us to learn more about how we help clients throughout North Carolina.

This article does not establish an attorney-client relationship and must not be construed as legal advice.