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Tuesday, August 27, 2019

How easy is it to remove an executor?

A question that I hear frequently from beneficiaries is how to remove an executor who has been appointed by a will. The question generally arises after the testator has passed away and the contents of the will are divulged. Sometimes the beneficiaries don't like how the estate is going because there are delays or disputes. In other cases, the executor barely has time to even read the will before the beneficiaries go on the warpath and want to give the executor the boot.

Let me say right off that the choice of executor belongs to the testator. If it isn't your will, you don't get to choose the beneficiary. It bothers me to see how many beneficiaries and family members decide an executor has to go when it simply is not up to them. There is not much respect for the deceased's wishes when people disregard the choice of executor.

Executors can be removed by the courts. It's not impossible, but it is pretty darn hard to do. You will need really strong reasons backed by evidence before the court will even entertain your request to remove an executor. The bar is set very high.

When I tell this to clients sitting across the desk from me, I get push-back. People want to hear that they can have what they see as the most reasonable option. In some cases, as mentioned, the executor doesn't even get a chance to get started before beneficiaries decide he or she won't cut it. But you cannot have an executor removed because you predict that he or she will be bad at it.

This is for two reasons. One is that being named as an executor is a right given to the executor by the testator. The executor has the right to administer the estate until it is proven that he or she can't do the job and has messed up in a big way.

The second reason is that the court's job is not to change what's in the will; the court's job is to ensure that the will is followed. It always baffles me when a beneficiary insists that every word of the clause giving them an inheritance must be followed but the part about the executor should be changed. You have to follow the whole will and not just the parts you like.

So when can a beneficiary ask a court to remove an executor and have a reasonable chance of success? The case can be won when there has been a breach of the executor's duties. This usually means that money is missing, that the executor is making costly mistakes due to foolish choices, that the estate is dragging on for years for no reason, or that the executor is acting in his own interests and not that of the estate. The bottom line is what is best for the estate. If you have evidence to support one of these claims, you might have success.

The most common situation that I've seen is that the beneficiaries and the executor are fighting so constantly and so bitterly that the estate is at a standstill. In that case, the court will normally remove the executor and appoint a neutral third party. It is highly unlikely that in the case of disputing parties, the court is going to sub in a beneficiary because the fight is just going to go on.

The take-away from this post is that it's not easy to persuade a court to remove an executor, but sometimes it's the best solution for an estate that has gone off the rails.

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