When You Don’t Believe the Executor or Administrator is Doing a Good Job

When You Don’t Believe the Executor or Administrator is Doing a Good Job

Provided By: Alan G. Orlowsky 

A provision found in most every will or trust is the appointment of an executor or administrator (in the case of a will) and the naming of a trustee (who oversees management of the trust). With very few exceptions, the creator of the will or a trust can name any individual over the age of 18 that the testator (wills) or grantor (trusts) to act as executor/administrator or trustee. Sometimes the person chosen has served as a trustee or executor before, but more often than not the trustee or grantor is saddled with the responsibilities of managing the affairs of a deceased loved one and must learn by trial and error how to fulfill his or her obligations.

When the Trustee or Administrator Fails to Carry Out His or Her Duties, Beneficiaries Suffer 

The trustee or administrator has a legal obligation to the decedent as well as to any beneficiaries and/or heirs to carry out the instructions contained in the will or trust with reasonable speed and care. When the trustee or administrator fails to do so, it is often the beneficiaries of the will or trust who suffer the most in that they are unable to take possession of the items and assets left to them by the decedent.

When the beneficiaries, heirs, or any interested party feels that the named executor or administrator is not fulfilling his or her duties, he or she can file a petition with the court where the decedent’s will was admitted into probate and ask the court to remove the executor or trustee. This petition must generally allege facts establishing good cause to remove the executor or administrator and be signed under oath.

The court will then hold a hearing to determine if the executor or trustee should be removed. The party asking for the removal of the executor or trustee bears the burden of showing that removal is proper. This is accomplished (for example) with evidence establishing by a preponderance of the evidence showing:

  • Wrongful neglect of the estate (if the executor or trustee has not been performing his or her duties in a timely manner);
  • Waste of the estate’s resources, embezzlement, fraud, or gross mismanagement of the estate; and/or
  • General inability or unfitness to carry out the duties of the position of executor or trustee. 

Should I Petition to Remove the Executor or Trustee? 

Discuss with a qualified estate contest attorney whether it makes sense to petition to remove the executor or trustee from the decedent’s estate. In some cases, the executor or trustee may simply need additional assistance or direction in carrying out the duties of the position. In other cases, the executor or trustee may not want to fulfill the job and a new person should be appointed promptly.

If you are an heir, beneficiary, or interested party to a decedent’s estate and have concerns about the way it is being managed by the executor or trustee, contact the Illinois law firm of Orlowsky & Wilson. We assist clients with estate matters and concerns in Highland Park, Skokie, Evanston, Glencoe, Glenview, and Northbrook and surrounding areas. Contact our firm at (847) 325-5559 or contact us online for prompt and knowledgeable legal advice and assistance.

 

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