New York Estate Planning & Elder Law Blog
When someone creates a last will and testament, he or she will need to name an executor to the estate to oversee dispersal of the assets and settling of debts. Once the last will and testament is created and the testator passes away, the will cannot be amended and probate laws require this individual to act responsibly and comply with the deceased’s wishes.
However, it is not uncommon for executors to mismanage estates, either through negligence or malice and beneficiaries. Executors owe a fiduciary duty to the estate’s beneficiaries by carrying out several functions including:
- Obtain a copy of the last will and testament
- File petition to probate the will with the appropriate court
- Collecting assets including property, debits, and securities
- Filing tax returns for deceased
- Settling debts, taxes, and liens
- Acting as the administrator to the deceased’s business interests
- Dispersing assets in accordance with the will and testament
What is a fiduciary duty?
Under probate law, executors are considered the fiduciary and the benefactors the principles. Often times, the executor is also a named beneficiary to the estate and the possibility exists that he or she may seek to enrich himself. There are several possible grounds for dismissal as an executor that may include:
- Gross mismanagement of the estate
- Improper asset accounting
- Personal enrichment from the estate
- Failure to comply with court order or comply with the deceased’s wishes
Sometimes, executors may make decisions which may seem counter to the interests of the beneficiaries but may not turn out be grounds for dismissal. As long as the executor’s actions are reasonable at the time, courts will generally decline to use that as a basis for removing the executor.
Conflicts of interest
One of the main reasons why executors are removed from their oversight of the estate has to do with conflicts of interest. This can include using assets in the estate to guarantee loans, business deals, or other financial transactions that may benefit the executor.
Beneficiaries aware of mismanagement, incompetence or theft must file affidavits and motions with the probate court reviewing the will. These affidavits must outline the reasons why the executor should be removed.
If the probate court agrees to remove the named executor, the judge will take it upon himself or herself to name a successor to manage the estate. Because these are extremely serious issues, beneficiaries should consult with an experienced New York probate and estate lawyer to make the most compelling case possible.