Testators creating their estate plans often spend a lot of time thinking about who to name as their executors. If they don’t name someone, the probate courts may choose an individual to handle probate matters and the distribution of someone’s assets.
Being an executor is a stressful and lengthy obligation. Probate proceedings can easily last for more than a year following the death of the testator. People may have to miss work to go to court and spend countless hours of personal time securing and managing the property of the deceased.
Not all executors fulfill their obligations in an appropriate and timely manner. Some executors actually fail to uphold their fiduciary duty and could therefore face removal efforts.
What is an executor’s fiduciary duty?
Although many people assume that executors have a duty to the testator who created the estate plan, such a duty would theoretically end with someone’s death. The duty is instead to be a state itself and its beneficiaries.
The executor should put the best interests of the beneficiaries of the estate ahead of their own wishes. That may mean working with an outside company to maintain investment accounts or properly securing real property before quickly arranging to list it so that the property’s value doesn’t drop due to an extended vacancy.
Executors should not seek to profit from their position in any way. Although the estate may compensate them for their work, they should not try to arrange for any secondary payments or perks for themselves or their immediate family members. Hiring their child to provide lawn care at the deceased person’s home for three times the market rate could be an example of a breach of fiduciary duty.
Selling valuable assets from the estate for half of what they are actually worth could also be a noteworthy breach. Beneficiaries and family members who question an executor’s actions may need to go to probate court.
How the probate courts help
Provided that you have evidence that a reasonable person would have handled the matter differently or that different management would have returned better results for the beneficiaries of the estate, you may be able to remove the executor from their role or potentially stop them from completing a sale or transfer that would harm the estate itself.
Understanding the rules that govern probate administration can help you be a better advocate for yourself and other beneficiaries.
