Removing An Executor In A Disputed Estate

Removing An Executor In A Disputed Estate

Provided By: Alan G. Orlowsky

When a person passes away, he or she will most likely have named an executor to the estate to handle dispersion of assets after death. This individual is expected to act as a responsible representative of the estate and fulfill his or her duties as outlined in the will (if there is one).

Unfortunately, the executor of the estate sometimes fails to live up to his or her fiduciary duty to properly administer a will. In these cases, beneficiaries of an estate may need to take legal steps to remove the executor and appoint a new one.

What are the roles of an executor?

Following the passing of an individual, the estate is entrusted to an executor expected to carry out certain functions. This includes:

  • Collecting assets of an estate;
  • Settling debts and tax issues;
  • Administering the estate; and
  • Dispersing assets.

When can an executor be removed from an estate?

Executors owe an estate’s beneficiaries a fiduciary duty to act in their best interests. Under this legal principle, the executor is the fiduciary and the beneficiaries are known as the principles. To remove an executor from an estate, the beneficiaries may need to file motions with the probate court.

Grounds for removal of an executor include instances of misconduct, incompetence, or dishonesty. This may include the executor:

  • Not complying with court orders;
  • Failing to carry out his or her duties as described in the deceased’s last will and testament;
  • Using estate assets for personal gains;
  • Improperly accounting of assets; or
  • Grossly mismanaging the estate.

Executors cannot be removed for simply making decisions that do not turn out to benefit principles so long as they are made in the best interest of the beneficiaries at the time of the action. So long as these actions seem reasonable at the time, they are deemed to be made in good faith.

Conflicts of interest

Executors must administer an estate fairly amongst beneficiaries and may not take any actions that may be construed as a conflict of interest. This may include using the estate to guarantee loans or business deals that would benefit the executor. Proving a conflict of interest can be difficult but courts do allow beneficiaries to challenge an executor’s authority on the grounds of conflicts of interest.

Appointing a new executor of an estate

To remove an executor from an estate, beneficiaries will need to create affidavits outlining the misconduct or mismanagement and file petitions with probate courts. Having an experienced Illinois estate attorney can be especially important to see this through since courts may not be inclined to interfere with the wishes of the deceased.

If you or your family members believe their loved one’s estate is being improperly managed or administered, contact the law office of Orlowsky & Wilson, Ltd. for a consultation about your case. Our attorneys have years of experience helping families reach solutions to their estate and probate issues. Our office serves clients in Northbrook, Evanston, Skokie, Glenview, Glencoe, and Highland Park.

 

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