The majority of the questions I received this week were from beneficiaries who are fed up with the executors in charge of estates in which they are involved. They said the executors are terrible and the beneficiaries want to go to court to have the executors removed. I can see their point. An awful lot of executors really are doing a terrible job, and some will no doubt be removed. I'd like to take a few minutes to take a closer look at this idea of a beneficiary applying to the court to remove an executor.
It's an uphill job. Nobody should think that getting an executor tossed out of an estate is quick or easy. First of all, there are two sides to every story (actually there are probably more like ten) and the court process for dealing with testimony can be lengthy. Assuming that the executor objects to being booted out of the job, there may be affidavits filed, counter-affidavits filed, examinations on affidavit (in-person cross examination of what you said in your affidavit) held, undertakings given. This could take months.
The real obstacle to removing an executor is the fact that he or she was chosen by the deceased. If a judge removes the executor, the judge is in effect re-writing part of the will. They don't take that lightly; in fact judges will make every effort to uphold the terms of the will as much as possible.
If you apply to the court to ask that the executor be removed, the judge has more options than simply saying yes or no to that request. In fact, the lawyer that helps you bring your application to court should know this, and suggest some of those less drastic options that might work for you as a back-up in case the judge does say no. The judge may try to get things back on track with the current executor.
For example, if the problem you're having with the executor is that she simply will not give any information and you believe that money has gone missing, the judge might order a passing of accounts. As another example, if your complaint is that the executor is simply dragging his heels and isn't doing anything at all, to the detriment of the estate, the judge might impose a deadline for taking certain steps. Depending on the issue, the judge could order the sale of a house, direct mediation between certain parties or set executor's compensation.
Keep in mind that if you're proposing that an executor be removed, you'd best have a replacement in mind. The best option would be an alternate named in the will, if there is one. The judge may not think that having an estate with no executor is good for the estate, and having nobody in charge definitely isn't going to resolve your concerns.
This is not to say that it's impossible to remove a rogue executor. It certainly does happen. It probably needs to happen more often than it does. Sometimes in the really egregious cases the executor ends up in jail either for theft from the estate or for contempt of the judge's orders. In other, less dramatic, cases the executor isn't jailed but is released from his or her duties, perhaps with costs assessed against him or her by the court.
I look at this as a positive thing. Yes, I'm a born optimist, I know that, but look at it this way. Maybe the only thing you can think of to fix a broken estate is to remove the executor. Seeing an experienced lawyer and getting in front of a judge brings you face to face two very knowledgeable people who can help you with that estate. They will suggest solutions that you might never have thought of.