Thinking of challenging an executor? Think carefully before committing to it.

Earlier today I answered a question from a reader about whether or not it is worth it to take an executor to court for taking money from the estate, selling off assets too cheaply, and doing other slippery things such as telling people they are not in the will when in fact they are. The reader was wondering about it because the dollar amounts in the estate are not the multi-million headline frauds we hear about in the news. This question of whether or not to begin a lawsuit is something that many readers here must think about in their own lives.

When clients of mine are considering starting a lawsuit, we sit down to consider it carefully. First I ask them to define their goals. Is their goal to recover funds? To make the executor accountable? To ensure the will is followed? Clients often verbalize goals that are not necessarily all about getting back the missing money.

Once I know what they want to do, we look at whether the law supports them. This is sometimes a disappointing step for would-be litigants because they do not necessarily want to know they don't have a strong legal footing. In the example of the executor given above, it would be important to determine  how much of what the executor has done is really within the discretion of an executor. For example, selling an asset for less than the beneficiary thinks it's worth may have another side to it. Maybe the beneficiary is misinformed as to the value. Maybe the executor had it on the market for many months and was forced to reduce the price to make a sale. Beneficiaries often misunderstand whether they get to approve of transactions.

Assuming my beneficiary client is correct and the executor is in fact taking wrong or illegal steps with the estate, the next step is to determine whether my client has any evidence. Not just guesses. Evidence. What proof exists that can be brought to a judge? Clients will often be quick to name family members or friends who are "willing to testify" and that is important, but there also should be impartial, hard evidence, Perhaps property valuations, bank statements, or other third party, neutral paperwork.

If all of that is in place, the client will know that he or she has a case that is strong enough to bring to a judge. The question still remains about whether he or she wants to go ahead. Nobody should ever enter into litigation lightly. I try to describe the process to my client without sugar-coating or, on the other extreme, sounding as if litigation is hell on earth. I remind my client that the process will not be quick and if it goes all the way to trial, could well take a couple of years.

Cost is a factor, even when the goals outlined by the client are not necessarily all about money. It's expensive to litigate. It could cost tens of thousands of dollars and there is no guarantee  you'll see any of it back again. Winning is not guaranteed. Getting your costs fully covered by an estate or the other party is unlikely.

Then there's the unpleasantness of it all. If my client wants to accuse an executor of breach of duty, he or she has to describe each and every wrong thing the executor has done. In return, the executor will sling as much mud as possible in return. It gets nasty, and that's hard on the nerves. Many clients will accept the headaches and stress as part of the cost of getting things done, but it's not for the faint-hearted.

As I often tell clients, the real question is this: Can  you live with yourself if  you don't do anything about it? If not, go ahead and give it a shot. Otherwise, think it over long and carefully before committing yourself to litigation.