5 minute read

What Happens When Someone Else Wants to Act as Executor

There are instances when parties involved in a probate case will want to replace the executor. Trust & Will explains the workings of contesting executorship.

Mitch Mitchell

Mitch Mitchell, @MitchMitchell

Product Counsel, Legal, Trust & Will

When a loved one passes away, avoiding additional stressors is often a top priority. Dealing with the loss of a loved one is difficult enough as it is, but on top of that, the family has to sort out the matters of the decedent’s estate. Luckily, the executor of the estate is a trustworthy individual who handles most of the tasks relating to probate and distributing the estate. However, what is the executor can’t serve? Or worse, what if you find out that they are abusing their duties? Trust & Will explains how, if it comes down to it, contesting executorship is a viable method of removing and replacing the estate’s current executor.

What is an executor & what do they do?

It’s helpful to know an executor’s power and duties to get an understanding of why it needs to be the right person.

An executor of a Last Will and Testament is named by the testator (the person who wrote the Will). They are an individual who is trusted with the very important job of administering and distributing the estate after the testator passes away. This is called a fiduciary duty.

Some of the executor’s duties include filing the Will for probate, using estate assets to pay the decedent’s creditors, as well as ensure that their final wishes are met. This includes instructions for how their assets and property should be transferred to named beneficiaries. 

There are times when an executor is simply unavailable to serve and must be replaced, such as when they don’t want to serve, are predeceased, or are otherwise unavailable.

Far worse, there are also instances when an executor must be removed because they are incompetent, illegal, or corrupt. Due to their power as well as access to estate funds, there are times when individuals fall into temptation and commit crimes such as fraud, embezzlement, or otherwise utilizing the estate to their own benefit.

This is where contesting executorship comes in.

Contesting executorship definition

Contesting executorship is the legal act of filing a petition to remove an executor from their appointed position.

Families of a decedent may do this if they feel that the current executor has abused their power, or are not exercising due diligence in their duties. Anyone with a stake in the estate can make the motion to remove the executor with the probate court, and thus they are contesting them. 

They must also gather and submit evidence that will help justify the removal by the probate judge. For instance, they’ll need proof of why they believe the executor is acting unlawfully, unethically, or is being negligent. Records, written evidence, correspondence, or witness statements to build the argument are all helpful. Ultimately, the probate judge will review the petition and evidence and determine if the executor shall be removed. They will also replace them with a new appointment.

The party contesting executorship can also  request that the court temporarily suspend the current executor’s fiduciary powers until the case is resolved. This can serve as a safeguard to prevent the executor from taking any untoward actions while the petition is pending.

Can you remove an executor?

Yes, an executor can be removed. 

If you are the creator of a Will (testator), then you can easily remove and replace your named executor at any time before you pass away. This is, of course, you are capable of doing so in terms of soundness of mind and updating your Will such that it is valid. If you have reasons to change your executor, or any aspect of your Will for that matter, it’s recommended to do so as soon as possible. You’ll have better peace of mind knowing that your Will is up-to-date and valid while you are still in good health. Further, making sudden changes closer to your death (such as if you are terminally ill) can create strife or even suspicion amongst those close to you. An opportunistic individual may even attempt to prove that you were under undue influence and thus the changes are invalid.

If you are not the testator of the Will, then removing the executor is possible, just not as easy. This is because there must be a valid reason to remove the executor. We’ll explain these reasons next.

Valid reasons to contest an executor

Each state has its own set of rules that describe when an executor can be contested and removed from estate administration. Therefore, it is best to double-check your state statutes before moving forward. 

Here are general examples of when you may have the grounds for executor removal as probate gets started:

  • The executor is not a U.S. citizen

  • The executor doesn’t speak English

  • The executor is still a minor at the time of the decedent’s death

  • The executor cannot be found

  • The executor is a felon or is in prison

  • The executor is currently struggling with drug addiction

  • The executor has a conflict of interest with the estate

  • The executor has a history of theft or deception

The above provides examples of initial reasons to remove an executor out of concern of the estate. 

As probate goes forward, additional reasons could develop. Beneficiaries cannot file a contest to remove an executor for just any reasons, such as disagreement with the executor following the exact instructions of the Will. 

Here are, however, some valid reasons for contesting the executor:

  • Neglecting to follow the instructions of the Will

  • executor is taking actions without permission from the probate court

  • Mismanagement of estate assets in such as away they lose value, selling them to a friend for a reduced price, etc.

  • Misappropriation of funds

  • Use of funds or property for personal gain

  • Failing to carry out court instructions or orders

  • Neglecting executor duties

  • Failing to file the Will in probate

How to remove an executor

The executor role is a voluntary position and can be removed and replaced at any time. An executor may be removed for a number of reasons, such as they are underqualified, abuse their power, are predeceased, or simply don’t wish to serve. 

The current appointed executor can remove themselves at any time  by filing a notarized renunciation form with the probate court. It should list out the reasons they don’t wish to fill the position. The probate court will typically approve the resignation and appoint a replacement.

As an interested party, you can also seek removal of the nominated executor. Perhaps you feel that they aren’t qualified or are guilty of any of the possible offenses discussed earlier. By contesting their position, you are challenging their appointment to the estate and in the best interest of said estate. A successful contest isn’t guaranteed, but removal is possible if you have enough grounds.

Therefore, you should be careful to present compelling evidence before the probate judge. The executor will be given the opportunity to prepare a rebuttal. They’ll also have the opportunity to correct whatever is being challenged or quit the position voluntarily. The judge will ultimately make the final ruling.

How to replace an executor

There are a number of ways that a vacant executor position can be replaced. 

If the current executor resigns, some states allow them to nominate a replacement. Other states use statutory law to choose a replacement. Priority typically starts with close relatives of the decedent, followed by anyone else who has a financial stake in the estate. In many states, this process also takes place if the named executor doesn’t officially accept their position within a reasonable amount of time. 

As the testator of the Will, it is a smart idea to name an alternate executor instead of leaving it up to state statutes. That way, if your first choice for executor cannot or will not serve, your odds of having your selected back-up serve are much greater.

In the best interest of the estate

Contesting executorship, when necessary, adds an extra layer of stress on the probate process for everyone involved. The executor is a key player, if not the most important player, after the passing of the testator when it comes to the administration of the estate. Due to their fiduciary role, a lot of trust is placed on them, and thus a lot of power. Having the right executor can make or break the outcomes of estate settlement, as well as the journey to get there. 

Therefore, it’s always important to act in the best interest of the estate. As a beneficiary or other person with a stake in the estate, do not hesitate to act if you feel that the current executor is not doing the estate justice. Even if the judge doesn’t find enough grounds to remove the executor, it could be the wake-up call needed for the current executor to step it up. 

Another great way to act in the best interest of the estate is to have support on your side. At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help.  Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.

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