The Executor Adviser from Executor.org
By: Executor for Legacy
2 years ago
The Executor Adviser is an advice column created by Executor.org for Legacy. Executor.org's experts aim to help readers with questions about executorship and provide comprehensive, free online resources to guide executors through this complex process.
As hard as the deceased may have tried to select the best person possible to serve as their executor, it is possible that executor may not be well-suited for the job. It may be that the person does not want to serve and resigns her assignment, or that he does not have the time to complete the required executor duties. But, unfortunately, an executor may also be ill-suited because he is putting his interests above the interests of the beneficiaries, which is not an acceptable thing to do.
How should an executor act?
Executors are “fiduciaries.” Simply put, this means that they are required to act in good faith when undertaking any role that is required as an executor. This means that an executor should act fairly and should not intend to benefit himself at the expense of estate’s beneficiaries or harm others through the execution of duties.
As you might imagine, this is a subjective standard. There are no written rules of exactly what does and does not constitute a lack of good faith. It is up to the court to make that determination.
How do you know if an executor is not acting as he should?
Here are some things you can look for:
*Is the executor taking money or possessions out of the estate to keep for himself instead of distributing them as the will specifies?
*Is the executor failing to complete the executor duties? For example, has it been more than a year since he began his executor responsibilities yet he has not paid outstanding bills or shown up for mandatory court appearances?
*Is the executor trying to prepare complicated filings such as taxes, sales contracts, and so on by herself when she does not have the expertise to do so?
*Is the executor benefiting from her role? For example, did she purchase the house for an amount lower than market value without putting it on the market?
*When distributing property, if the executor is also a beneficiary, did the executor set up distribution to make sure he received all the items with the highest dollar value?
*Is the executor purchasing things in the name of the estate that are not needed and then keeping them for herself?
What should you do if you believe an executor is not acting appropriately?
Whether the executor is stealing from the estate or spends years doing what should take only months, if you think an executor is not acting according to the good-faith standard, you need to bring this to the attention of the probate judge overseeing the final administration of the estate. If you are unsure of who the judge is, call or visit the probate court where the will was filed, and the court's staff will be able to tell you how to proceed from there.
If you find that the person who has been working as executor has not filed the will with the probate court, you are facing bigger issues. You need to alert the probate court and contact an attorney immediately. This is because, technically, if the will has not been filed with the probate court, there is no executor. By taking these steps, you can help ensure that the estate administration process can begin properly in the probate court.
Remember to document all the things you think point to the fact that the executor is not acting in good faith. The judge will need this information as she makes her determination.
As a beneficiary, you do not need to be afraid to speak up if the executor is doing things that are harmful to the other beneficiaries or the estate itself. The probate process is overseen by the probate court, so they can help enforce the standard of good faith that executors must follow.
The challenge here is that the executor may be a sibling, and making this accusation may seriously damage your relationship with her. However, if you’ve reached the point that you’re highly frustrated about the situation, the relationship will probably already be difficult to repair.
Remember, the duty of an executor is to do what is best for the beneficiaries, not himself. All beneficiaries have the right to be treated fairly, and they have the legal ability to pursue that right. In most cases when an estate is being settled, a loved one has been lost. All parties involved should do their best to “do the right thing” whenever possible in this situation so that the family comes together – instead of being ripped apart.
Have a question about executorship? Get an answer by sending an email to [email protected].
Patrick O'Brien is CEO and co-founder of Executor.org, a free, comprehensive online resource that helps executors manage their responsibilities and duties in this complex role. The free tools include a helpful step-by-step interactive guide for executors and invaluable tips on everything from planning a funeral and keeping beneficiaries happy to dealing with grief and managing estate assets.