August 13, 2022

Volume XII, Number 225

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August 12, 2022

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August 11, 2022

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Removal of An Executor of An Estate

Once an individual is appointed an executor of an Estate, they are tasked with the proper and timely completion of the administration of the Estate, as well as the distribution of assets and property of the estate to its beneficiaries. Provided the executor understands his/her duty to the estate and seeks appropriate help in this process, the administration of an estate can be timely completed and assets appropriately distributed. Unfortunately, it is not uncommon for issues to arise in the administration of an estate. The below sub-headings address scenarios where an executor could be removed by the Court once an application is filed by a beneficiary of an Estate. This is not an all-inclusive list, but instead, discusses some of the main issues that are typically encountered.

Failure to Timely Administer the Estate

One of the most common issues beneficiaries face is when an executor fails to timely administer an estate. Although estate administration is a fairly complex process, the executor nonetheless has a duty to timely administer the estate in an expeditious fashion. Unfortunately, at times executors simply do not expediently process the administration of an estate, but instead, take far too long to complete simple processes or become derelict in their duty of administration.

Should an executor be derelict in his duty of administrating an estate, an action can be filed with the court seeking removal of the executor. Typically, the court will set forth a schedule for the executor to meet after such action is filed. Provided the executor meets the court-imposed deadlines, then this individual will likely not be removed from the estate. On the other hand, should the executor completely disregard such deadlines, removal can be effectuated.

Failure to Maintain Accurate Records

Every executor of an estate has a duty to maintain accurate books and records of the administration of the estate. Unfortunately, at times executors fail to maintain such records which could then be a basis for their removal should an action be filed with the Court. In addition to their removal, the court could enter judgment against the executor for any amount(s) for which they are unable to account for. These types of actions typically come to light during the administration of an estate when executors fail to provide an accounting of the estate in response to requests of the beneficiaries. Should an executor be unable to provide such accurate information, an action may be commenced as discussed above which may result in the removal, as well as a surcharge against the executor.

Commingling of Estate and Personal Assets

When an executor is administering an estate, they must be certain to maintain separate and distinct estate accounts. At times, executors may make the mistake of depositing estate assets into their own accounts, thereby comingling these assets. This is a direct violation of an executor’s fiduciary duty to the beneficiaries of an estate and will result in the removal of the executor if the issue is not immediately corrected.

Should the estate accounts be initially commingled but are corrected with an accurate accounting provided by the executor, this may prevent his removal. On the other hand, if the amounts are commingled and thereafter the executor cannot accurately account as to the estate estates within his personal account, removal is a certainty. After such removal, it is likely that the executor would be surcharged and a judgment entered against him in favor of the estate and its beneficiaries.

Conversion or Theft of Estate Assets

One of the more serious issues which would require the immediate removal of an executor would be evidence that the executor converted and wasted estates assets for his own use and benefit to the exclusion of the estate beneficiaries. An executor’s duty is to marshall and gather estate assets, and thereafter, to distribute them to the beneficiaries of an estate after appropriate taxes, expenses, and liabilities of the state are addressed. Should an executor do this properly, the executor would be entitled to a commission. Under no circumstances, however, can an executor take estate assets for his own use and benefit to which he is not entitled. Such conduct constitutes theft and would require an executor’s immediate removal. Further, it is likely that criminal charges may be filed under such circumstances.

Any Other Wrongdoing Including Bias

Aside from the above topics, there are many other reasons that an executor can be removed from an estate, including

  • A demonstration of bias by the executor against one of the beneficiaries of the estate.

  • The executor favors one beneficiary of the estate over the others, and as a result, is treating the other beneficiaries unfairly.

  • Evidence that the executor has participated in criminal conduct not related to the estate may also require the executor’s removal.

Typically, any type of unlawful conduct by the executor, even if outside the scope of the estate, can often lead to their removal. Further, any conduct which may harm the beneficiaries of the estate or the estate itself, likewise can lead to the disqualification of an executor. Obviously, this is a very broad area and his case specific.

The above referenced paragraphs give several reasons why an executor may be disqualified from serving in his role for an estate. This list is not all inclusive, and instead, is merely to discuss problems which typically occur. If there is a concern that an executor is acting improperly or should be disqualified, an attorney should be consulted to determine the appropriate action, if any, to take. Certainly, if there is an issue which requires immediate attention you should not sit idly while the executor potentially permanently harms the estate.

COPYRIGHT © 2022, STARK & STARKNational Law Review, Volume XII, Number 39
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About this Author

Paul Norris, Stark and Stark Law, Probate Litigation Lawyer, Construction Attorney, New Jersey
Shareholder

Paul W. Norris is a Shareholder and a member of the Firm’s Litigation Group. Mr. Norris’ areas of practice include: Probate Litigation; Construction Litigation; Commercial Litigation; and Criminal and Municipal Court representation. Mr. Norris has an extensive and growing Probate Litigation practice, which concerns either defending, or initiating Will contests on behalf of beneficiaries and purported beneficiaries of an Estate as well as related litigation. He has both prosecuted and defended actions successfully in this regard, and also serves as a Court appointed...

609-895-7325
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