How to Petition to Remove an Executor

By Abby Lane
Probate judges, executors, who, their duties
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Executors, also called personal representatives, have the duty of handling a deceased person's estate in a manner that is in the best interests of the beneficiaries and heirs. Although the person the deceased selected usually is responsible, trustworthy and without ulterior motives, this is not always the case. When valid grounds to challenge executors exist, the probate system provides opportunities for interested parties to ask the court to remove them.

Confirm Standing

Only individuals with "standing" can ask the probate court to remove a personal representative. Standing means that you have a legally protected interest in the issues before the court. Generally, you have standing in a probate proceeding if you are named as a beneficiary in the will or would have benefited under your state’s probate laws if there had been no will. In such a case, you usually would be directly related to the decedent by blood or marriage. Creditors of the estate also normally have standing to challenge an executor.

Grounds to Remove Executor

If you have standing, determine if valid grounds exist for challenging the executor. In most states, these include incompetence, misconduct or conflict of interest. An executor who grossly mismanages estate assets, doesn’t follow court orders or otherwise fails to perform the duties of an executor may be incompetent or guilty of misconduct. In some jurisdictions, an executor who is a felon may not be competent under state law. An executor who is also a beneficiary of the will does not automatically have a conflict of interest; a true conflict of interest is one that makes it impossible for the executor to administer the estate as a trustworthy fiduciary.

File Your Request

First, determine what court is handling the estate. If you are a beneficiary of the will, you have probably been given notice that the will is being probated and you have the court and case number on hand. Depending on your jurisdiction, your written request that the court remove the executor will be called a Petition or Motion to Remove Executor. Include in your written request the reasons why the executor should be removed. Your request will be set for a hearing before the probate judge. You must send a copy of your request with the hearing date to the executor and all other interested parties.

Possible Outcomes

At the hearing, present evidence as to why the executor should be removed. If the judge rules that the executor is incompetent, has engaged in misconduct or has a true conflict, she will remove the executor. If the will named a successor or alternate executor, that person will be named as the new executor. If no alternate was designated, your state’s probate laws may govern whom the judge will consider for appointment as a new executor. In that case, another hearing may be held to determine and appoint a new executor.

About the Author

Abby began writing professionally in 2008. Her writing experience includes scholarly writing and articles for eHow. Abby enjoys writing brief how-to articles on legal issues. She holds a Juris Doctor degree from the University of Nebraska.