I Don’t Agree With the Executor of the Estate: What Can I Do?
A last will and testament (a will) is the basic building block of estate planning. This legal document enables the testator, or the person creating it, to designate who gets what assets when they’re gone.
As part of the process, the testator must name a personal representative who will oversee the execution of the will as it goes through probate, which is a court process to verify the will and ensure all creditors and taxes are paid before assets are distributed.
The testator can name anyone as a personal representative, family, friend, associate, or professional. The personal representative will then be named as the executor of the estate by the probate court when the will and death certificate is presented to the court to begin probate proceedings.
The responsibilities of the executor can be great, depending on the size of the estate, the debtors, and the loved ones who are the designated beneficiaries. Some executors can handle their responsibilities almost flawlessly; others may find it challenging. Some, in a worst-case scenario, can even try to take advantage of the situation to enrich themselves, hoping no one notices.
If you’ve lost a loved one in Southern California and suspect the executor of your loved one’s estate is not living up to the task; or worse, is taking advantage of their position, contact us at the Bochnewich Law Offices.
There are legal means to remove and replace an executor, and we can help you identify the causes and petition the court. Our legal team has vast experience in probate and estate administration and with work with you on a one-on-one basis to resolve the situation.
Duties of the Executor
The personal representative named in a will basically becomes the administrator of the estate of the testator. There are many steps in the probate process, but it all begins with presenting the will and death certificate to the probate court in the county where the testator lived and died. That person then becomes the executor of the estate. The executor must act in the interest of the beneficiaries of the estate, not act in their own self-interest or try to benefit from their role.
The primary purpose of probate is to make sure that creditors have been paid, so one of the first duties of the executor is to inform creditors – and beneficiaries – that the estate has gone into probate. The executor must then use resources from the estate to pay all debts, as well as state and federal taxes.
The executor also must complete an inventory and appraisal of the estate’s assets within 120 days. If assets need to be sold to pay off creditors or tax agencies, or eventually to satisfy the testator’s wishes for beneficiaries, then they may need to sell assets from the inventory to accomplish these tasks. If there are outstanding leases, mortgages, or utility bills that need to be paid, the executor must see to that as well.
Frequently, the executor must make detailed reports to the probate court. When all debts and obligations have been met, and the court approves, the executor can distribute assets to the beneficiaries as specified in the will.
Valid Reasons to Remove an Executor
If you’re a beneficiary, the probate process can be long and frustrating, and you may blame the executor for what seems to be delays and even non-performance by the executor. The executor is not always the source of delays, but there are valid reasons to challenge the executor and even to try to get that person removed and replaced.
The California Probate Code Section 8500 states: “Any interested person may petition for removal of the personal representative from office. A petition for removal may be combined with a petition for appointment of a successor personal representative under Article 7…. The petition shall state facts showing cause for removal.”
The facts, or reasons, for removal include:
Mismanagement, fraud, or other unlawful actions.
Using estate assets for personal enrichment.
Incompetence.
Not providing timely and accurate reports.
Refusing to comply with court orders.
Having a conflict of interest.
Failing to comply with the will’s terms.
Being under undue influence.
Being convicted of a crime.
How to Take Action
The first action is to communicate your concerns with the executor. This may be done simultaneously with the guidance and assistance of an experienced probate attorney. If this effort to communicate and exert changes falls short, you can petition the court for the removal and replacement of the executor. The petition must state the facts and reasons for removal.
Under the Probate Code, the court will schedule a hearing and summon the executor to answer questions. If the executor does not appear at the hearing, they will be removed. If the executor appears and the evidence shows a cause for removal, then the removal shall be ordered.
Protecting You and Your Loved Ones
For all your probate and estate administration concerns and questions wherever you are in Southern California, contact us at the Bochnewich Law Offices. If the executor of your loved one’s estate is not living up to their responsibilities, we will help you resolve that situation through direct communication with the executor or through a petition to the court, whichever is most appropriate.