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Monitoring an Executor’s Actions

Posted on: July 11th, 2016
executor dutiesFamilies sometimes contact our probate attorneys in Chapel Hill when they are concerned about an executor’s actions—or inaction—and need to explore options for legal intervention. Executors have a fiduciary duty toward the estate that must be observed when carrying out their actions in administering the estate, and failure to adhere to fiduciary standards may result in the executor being held personally accountable for breaching their fiduciary duties.

Personality conflicts or an antagonistic personal history between the executor and beneficiaries are not typically grounds for removal. An executor must act fairly and honestly according to the law, which might not correspond with a beneficiary’s expectations. Grounds for removing an executor must involve breach of fiduciary duty. An executor might not be familiar with tax laws and legislation changes, and that inexperience could lead them to make irresponsible decisions with asset management. Careless mismanagement of the decedent’s assets, failing to file the will or other documents, refusing to communicate with creditors, failing to file tax documents and pay any tax due, and other similar actions may be recognized by the court as misconduct. 

Generally, a petition for removal of an executor must be filed with and approved by a court. A court hearing is held to decide whether the executor should be removed from duty. The petitioner is typically an individual with an interest in the estate, such as a creditor seeking payment from the estate who is frustrated with the executor’s inaction or carelessness, or a surviving family member who might inherit assets. If another party with no potential financial benefit from the estate witnesses an executor’s misconduct or discovers a conflict of interest, they may alert a beneficiary who could choose to take action.

An executor who is removed from their duties might face personal consequences. If their misconduct caused a loss for the estate beneficiaries, the beneficiaries could collectively pursue a lawsuit for damages against the executor. In some situations, the courts will demand the executor pay punitive damages in addition to repaying the beneficiaries for their loss. The Clerk of Superior Court might hold the executor in contempt of court if they failed to fulfill their legal duties in administering the estate, which might lead to the executor being held in jail until compliance is reached.
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