Howard Law founder Tom Howard discusses why it is difficult and costly to remove an executor of an estate.
Frequently clients will come into Howard Law when they feel that there is some undue influence or some other impropriety, and they will tell you that the person that has been nominated as the executor, that they are so biased and hostile against that that they have to be removed. This frequently happens when there is a second marriage, and the executor is a child of the first or second marriage, and other children are claiming that this is unfair. It can also come up when there are siblings that do not get along or are mistrustful of each other. One will come into the office and say the brother or sister cannot be a fair executor.
The courts have a strong policy favoring the executor that the testator chose to appoint. The courts find that hostility disagreement, conflict of interest between fiduciary and beneficiary is woefully insufficient and in most cases will not or are very unlikely prevail. An attorney should advise a client that this is not something that they will prevail upon and that it is an expensive undertaking that is not likely to succeed.
Removal in fact as the appellate division has said requires clear and definite proof of fraud, gross carelessness or indifference. Indifference is a weak word to use. It means that the executor is paying no attention to the estate, is not acting as a prudent investor, and is causing losses or is highly likely to cause losses for the state. If you can meet this burden, you have a chance to get the executor removed. Of course, then the court is not likely to appoint you as the executor, but a third person, which will only add to the expense.
If an executor is wasteful or engages in other misconduct or fails to exercise reasonable skill and prudence which causes financial losses or spends money that shouldn’t have been spent from the estate, then they could be surcharged. So that there is a commission that the executor typically receives, which can be addressed to ensure that the estate is is kept whole, even if there is some degree of mismanagement.
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