May 26, 2019

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What to do if the Executor is Not Properly Administrating the Estate

As you may be aware, every Last Will & Testament contains a clause which appoints an Executor or Executrix to administer the Estate of a decedent. In a perfect world, the Executor would timely administer the Estate, would entirely fulfill their duties, and the Estate would be swiftly and economically administered. Unfortunately, this is not always the case and often times a beneficiary may be faced with an Executor who is not properly or timely administering the Estate. In such circumstances, the beneficiary may have a few different options they may resort to.

The first option would be to send a formal demand letter requesting that the Executor or Executrix timely and economically administer the Estate. Sometimes, the mere push by one or more beneficiaries of the Estate will compel the Executor to properly finish administration. Unfortunately, sometimes more action needs to be taken. The next logical step would be to retain an attorney to send a formal demand letter requesting that the Executor properly and timely administer the Estate. If the Executor does not heed the warning of the attorney, then the only remaining option would be to file suit to remove the Executor from their role in the Estate.

When an action is filed to remove an Executor of an Estate, the party filing the action may seek to appoint themselves as the replacement Executor, seek an Independent Executor, or seek to have the Successor Executor named in the Will appointed as the new Executor of the Estate. Such an action would be filed with the county Surrogate and would be heard by the Chancery Judge within that county. The complexity and the duration of the matter depends upon the scope of the improper conduct of the Executor, and whether there was unlawful conduct aside from a mere failure to take action.

During the course of this action, it is not uncommon for the Court to appoint an Independent Executor to finish the administration of the Estate. In the alternative, the Court could set a very detailed schedule by which the current Executor must abide by or forfeit their appointment. Whether or not the Court appoints an Independent Executor depends upon the nature of the relationship between the adversaries in the Action, the value of the Estate, and whether there is any previous evidence of malfeasance by the current Executor. Regardless, at the conclusion of such a matter, the party seeking to remove the Executor may often seek counsel fees from the Estate provided the Action was filed in good faith.

The above is merely an outline as to a beneficiary’s right to bring an Action to remove an Executor. It is suggested that a beneficiary consult with an attorney to review the merits of such claims. The important message is, however, that a beneficiary need not sit idly by and let an Estate waste away without taking legal action.

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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...

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