The executor has one of the most essential roles in fulfilling the last wishes of a person who has passed away. Since the decedent often appoints them, the court typically defaults to the executor. And when the court appoints them, it is done only after careful consideration.
Hence, there must be grounds for removing an executor — and these grounds sometimes do exist. In many instances, a beneficiary of a will has standing to ask the court to remove an executor if there is cause.
Duties of the Executor
The executor has a great fiduciary duty to administer the estate of a person who has died faithfully. They are often appointed in wills by the decedent. When they are not, the court appoints the surviving spouse or the children to be the estate administrator, a role with the same duties as the executor.
The duties required of an executor may be extensive, depending on the size and nature of the estate. They include:
- Identifying and securing all of the decedent’s assets
- Notifying all heirs and interested parties
- Communicating with the probate court
- Fulfilling the estate’s tax duties
- Paying creditors
- Distributing assets to the heirs
At each stage, the executor must act in good faith, honestly, and according to the decedent’s wishes. If they don’t, grounds for removal will likely arise.
Grounds for Removal of an Executor
The beneficiary of a will typically has significant interests in administrating an estate. Because some of the assets are going to them eventually, they have the right to take legal action to hold the executor accountable for improper actions and ineffectiveness.
When deciding whether an executor should be removed, the probate court will consider the request in light of the best interests of the estate. In other words, the reason for removal must not simply help the petitioner; it must also be in the best interests of the estate. That is all that truly matters when the court is making its decision.
What are some instances when a beneficiary can have an executor removed?
- The executor named is a minor
- The executor misuses estate funds and grossly mismanages funds
- The executor negligently causes the estate to lose value significantly
- The executor disobeys or ignores court orders
- The executor proceeds with processing the estate without including the court
- The executor deviates from the instructions of the will during asset distribution
Actions that embody or cause some of the above-listed examples include:
- Habitual drunkenness
- Drug use and abuse
- Commingling of personal funds with estate funds
- Taking unauthorized estate loans
- Misrepresentation and lying
- Failure to return important communications
- Going missing
- Being convicted of a felony relating to fraud
In Ohio, beneficiaries of wills who are family members may also potentially have an executor removed for failing to file a wrongful death lawsuit when a judge determines there are reasonable grounds for doing so.
Removing an Executor
Beneficiaries may ask for a formal accounting to judge the executor’s actions related to their fiduciary duty. If this does not satisfy the beneficiary, they may file a petition for removal with the court. Within the petition will be the reasons for the removal request and evidence backing up the request.
Because of these requirements, it is important to retain an experienced estate planning and probate lawyer to increase your odds of success in this process.
An Estate Planning Attorney Can Help
The Law Offices of Shaw & Nelson can help clients throughout the Louisville and Cincinnati area with essential and complicated estate planning questions. Please call today for a consultation and review to discuss your options.