The executor of an estate is tasked with distributing the estate’s assets to heirs – but what if they don’t do a very good job? From well-meaning incompetence to dishonest self-dealing, there’s a lot that can go wrong. If you think the executor is mishandling the estate, you can take steps to protect your inheritance.
Who Is the Executor of an Estate?
The executor of an estate is sometimes called the personal representative or simply the executor. This is the person who is responsible for managing the probate process. An executor is often nominated in the will and must also be approved by the court. If the person who is nominated declines the role, the court will appoint someone else. A bank or other financial institution can also serve as the executor.
Important responsibilities include:
- Starting the probate process. This typically involves submitting the will (if there is one) to the court and filing any required paperwork with the court.
- Publishing a notice to creditors. This allows creditors to make a clam on the estate. The notice is typically published in a newspaper.
- Gathering assets. The executor needs to determine what assets exist and what their value is.
- Paying debts. Before assets can be distributed to heirs, the executor must pay debts, including taxes owed by the estate. This may involve liquidating assets by selling them in order to secure the cash needed to pay debts.
- Distributing the remaining assets. This is done in accordance with the will, if there is one, or state law.
In exchange for this work, the executor usually receives compensation from the estate.
What Is Executor Misconduct?
The executor of the estate is taking on a lot of responsibility, often without any probate experience. If the estate is complicated – for example, with a many debts and different types of assets – it can be a lot of work. Family disputes can add to the stress. If heirs are fighting over the assets, the executor can get caught in the middle.
Sometimes the executor mishandles the estate, either through genuine mistakes and oversights or intentional fraud and deceit. Possible problems include:
- Failing to perform their executor duties. Executors sometimes become overwhelmed, or they may simply be forgetful. For example, an executor may forget to file taxes on behalf of the estate. Oversights like this can result in financial loss, as well as frustration for the heirs who are waiting for their inheritance.
- Putting their own interests first. The executor has a fiduciary duty to act in the best interests of beneficiaries of the will. However, some executors shirk this legal and ethical duty by putting their own interests first. An example of self-dealing would be an executor who needs to sell a piece of real estate and sells it to themselves at a bargain price.
- Committing outright fraud and theft. Some executors take advantage of their position to steal from the estate or lie about the will.
What to Do If You Suspect Mishandling
If you are an heir and you suspect the executor is mishandling the estate, you can take steps to protect your inheritance.
- Talk to the executor. There’s a good chance the executor is someone you know, possibly a family member. It may be possible to overcome minor problems with good communication.
- Request an accounting. This is a financial report, and reviewing it should give you a good idea of the status of the estate.
- Collect any evidence. If the problem is too great to resolve through friendly communication, you may need to pursue legal action. Gather any evidence you have to support your claims.
- Petition to have the executor removed. You can file a formal request with the probate court to have the executor removed. You may want to pursue additional actions, such as mediation or litigation. In the case of fraud or theft, you can also report the crime to the police.
Navigating the Probate Process
Probate can be stressful, both for the executor and the other beneficiaries. If you are serving as the executor of a will, an estate planning attorney can guide you through the process and your responsibilities. If you are a beneficiary and you suspect the executor of mishandling the estate, an estate planning attorney can help you navigate your options.
Whether you’re crafting an estate plan to avoid problems or you’re facing probate now, Skinner Law can help. Contact us.