After grieving the death of a loved one, the decedent’s heirs of the estate must go through the process of administering the will and distributing the decedent’s assets. In order to accomplish this process, an executor of the estate is typically appointed by the will or the heirs of the estate. Hopefully, the distribution of the estate goes smoothly, but at times, issues arise if the executor is either dishonest or fails to perform the duties required of an executor. The question then becomes, “What can be done in order to force the proper administration and distribution of the estate?”
If all attempts to informally encourage the executor to complete the administration of the estate have been unsuccessful, the only choice a beneficiary of the estate may have left is to retain counsel to file suit to force the administration of the estate. Should counsel be retained, the attorney will typically file an action with two principal causes of action.
The first cause of action would be to seek the removal of the executor and to replace them with another party, who would then assume the administration of the estate. The second cause of action would be to require the executor to account for all actions taken as executor of the estate, and furthermore, to set deadlines to complete the administration of the estate. Typically, in the absence of theft or conversion of assets by the executor, the court will set a tight schedule which the executor must adhere to or face removal by the court. In essence, the executor is given one chance to fully complete the administration of the estate or they will be removed.
If there is evidence of conversion of estate assets by the executor, and it can be demonstrated to the court, the court will remove the executor and either appoint an interested party, or a disinterested party, to serve as administrator. Further, if conversion is demonstrated, the executor would be required to reimburse the estate for all monies improperly taken, and moreover, would have to pay counsel fees to the estate, and also could be surcharged by the estate for their unlawful conduct.
If a beneficiary of an estate suspects such unlawful conduct, an attorney should be retained immediately to prosecute such an action. At the very least, the executor would be forced to account for all actions taken as executor, which would then reveal whether any theft or wrongdoing occurred.
This article sets forth only a brief overview of issues which may occur concerning the administration of an estate by an executor. As a beneficiary, if there are concerns about the proper administration of an estate, it is suggested that you promptly confer with counsel in order to protect your inheritance.
