No matter how meticulously you plan your estate, the possibility always exists that the decisions you make won't work out as you hoped. You might choose someone as executor who seems perfectly capable at the time, but over the years develops problems or habits that make him unsuitable to handle your estate. You may nominate a family member as executor, but you and he could become estranged. You can always amend your will to keep pace with life, but if you don't, your beneficiaries will have options.
Beneficiaries Must Have Grounds
If your beneficiaries simply don't like your chosen executor or don't agree with all his decisions, he's probably not going anywhere. Most state courts will not change or remove an executor unless his relationship with one or more of your beneficiaries is so toxic that it interferes with management of your estate. Other grounds include malfeasance – he took an action that was fraudulent or illegal – or neglect if he takes no action toward settling your estate at all. He might also have become incapacitated since you wrote your will, so he may be incapable of serving.
Complaint or Petition for Removal
If your beneficiaries have justifiable grounds, they can file a complaint or petition with the probate court to remove your executor. They can ask the court to replace him with someone else named in the pleadings. The exact requirements can vary from state to state. For example, in New Jersey, an order to show cause must accompany the complaint, demanding the executor appear before a judge to explain his actions or lack of them. Your beneficiaries can also usually request that the executor be prohibited from taking any further actions with your estate until a judge decides the matter. In Virginia, all your beneficiaries must receive notification that you've filed the petition, and some states may require that you have each of them served with a copy of it.
Read More: How to Petition to Remove an Executor
It might happen that your beneficiaries are not sure that your executor has done anything wrong; they just suspect it. In this case, most states allow one or more of them to file a demand for an accounting – a record of all money that has passed into and out of the estate, along with explanations for each expenditure. In New Jersey, a demand for accounting is typically included with the complaint to remove the executor; in other states, your beneficiaries can make such a demand before actually asking the court to replace the executor. If your executor is sitting on his hands, doing nothing toward settling your estate, some states allow your beneficiaries to file a motion or petition asking the court to order him to begin satisfying the terms of your will.
Your will can go a long way toward avoiding these problems, or at the very least provide a resolution. In Virginia, you can outline exactly how you want the court to handle it if your executor must be removed. You might state that a certain number or all of your beneficiaries can agree that someone else will serve instead. You can name the person who you want to take the job instead if this should occur or nominate co-executors so someone else is automatically available to continue with the job when the other is removed. You can also include specific reasons why the executor might be replaced. If he's not guilty of any of these infractions, you can instruct the court that you want him to remain in office. You might do this if you know your choice of executor will be unpopular and you expect there to be a lot of squabbling, but you feel strongly about it and want him to serve unless he does something particularly egregious.
- Kenneth Vercammen & Associates: Removing an Executor From an Estate
- Hale, Ball, Carlson, Baumgartner, Murphy: The Circumstances Under Which An Executor May Be Removed
- Law Office of Janet L. Brewer: Dealing with an Uncooperative or Dishonest Executor or Trustee
- American Bar Association: Choosing the Executor or Trustee (PDF)
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.