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  3. Probate Litigation
  4.  » When is it necessary to challenge the executor of a will?

When is it necessary to challenge the executor of a will?

| Sep 3, 2020 | Probate Litigation |

Losing a loved one is a painful experience. Your hurt may compound, though, if you suspect the executor of their will of misconduct. Their actions may stem from gross incompetence, or they may be nefarious. Either way, you might fear that you have few options for holding them accountable. But by challenging the executor in probate court, you can help uphold your loved one’s wishes.

An executor’s fiduciary duty

A will’s executor must uphold their fiduciary duty to the decedent’s beneficiaries. This duty requires them to adhere to the will’s terms regarding the distribution of assets. Yet, the executor has other responsibilities as well. Before distributing the decedent’s assets, the executor must pay off any debts the estate has. And they must inventory and safeguard the decedent’s assets before they disburse. Any willful or accidental failure to accomplish these tasks may qualify as a breach of fiduciary duty.

Your loved one’s executor may have committed a breach of fiduciary duty if they:

  • Failed to submit the will to probate court
  • Failed to communicate with heirs or beneficiaries
  • Used assets for personal matters or gain
  • Mismanaged assets so that they lost value
  • Withheld assets from heirs or beneficiaries

Removing an executor

As a beneficiary to your loved one’s will, it is up to you to petition the court for the executor’s removal. To do so, you will need to document incidents of their misconduct for the court to review. And you may need to request an estate accounting. If enough evidence exists that your loved one’s executor has breached their fiduciary duty, the court may remove them from their role. Unless your loved one named an alternate executor in their will, the court will appoint someone – often another beneficiary – in their place.

You will want to take steps to protect your loved one’s estate if their executor has abused their role. An attorney can help you understand your options for working toward accountability.