Is it possible to remove an executor from an estate?
When an individual, known as a testator, writes a will, he or she will generally appoint an executor. The executor of a will has a duty to the testator to carry out the terms and conditions of the will upon the testator’s death. During life, the testator can easily remove the executor from the will and replace him with another. After the testator’s death, it becomes more difficult to remove an executor from the estate. However, it is not impossible.
Reasons to Remove an Executor from an Estate
There are several reasons courts will remove of an executor from an estate. In general, courts will only remove an executor if it can be shown that the executor is incapable of performing the necessary duties, is unsuitable for the position, or has become disqualified since the deceased appointed him or her. It is important to remember that the executor’s duties are to carry out the intent of the will by acting in good faith and within the best interests of the beneficiaries. This means that if an executor does a poor or careless job of managing the estate, this can be grounds for removal. However, to justify efforts to remove an executor, this mismanagement must be fairly serious and damaging to the estate.
Further, the standard for the “best interests” of the beneficiaries is determined by the court. A severe departure from these interests may be required to remove an executor. For example, if an executor is flagrantly wasting the estate's assets, this may qualify, but if the executor simply makes an investment with which the beneficiaries disagree, this probably will not.
Unsuitability may be proven if the executor faces a conflict of interest in managing the estate. For example, a conflict of interest may arise if the executor is required to sell stock from the estate to a company in which he is a stockholder. Even then, if the deceased was aware that the executor was a stockholder before his appointment as executor, no conflict exists. Because determination of unsuitability is within the court’s discretion, conflict of interest may be difficult to prove.
Legal ineligibility may also remove an executor. An executor may be found ineligible if he or she has past felonies, is mentally incompetent, or is involved in other complex litigation. Grounds for removal may also include stealing from the estate, wasting the assets of the estate, refusing to obey a court order or refusing to follow accounting procedures.
Courts will not remove the executor for frivolous reasons. These may include being rude or argumentative with the beneficiaries, withholding information from the beneficiaries, refusing to invest the assets of the estate, or taking an overly long time to get the estate settled.
Procedure for the Removal of an Executor from a Will
To remove an executor from a will after the death of the testator, an interested person must file for a court proceeding. An interested person is an individual or business that has a stake in the estate assets. Generally, this is limited to the beneficiaries of the will and to creditors. At this proceeding, the attorneys for both the executor and the interested person will try to show why the executor should be removed, or why he or she should remain. Before the proceeding takes place, the interested person should request an estate audit to assist in establishing the reasons for removal.
Before attempting to remove an executor from an estate, it is advisable to retain the help of a probate attorney. Removal laws and procedures vary from state to state, and successful efforts to remove an executor will depend on specific facts and the discretion of the court.