One of the benefits of writing a will is choosing your own executor. An executor steers the will through the probate process -- gathering assets, paying bills and distributing remaining property -- usually charging the estate by the hour for the duration of the ride. A knowledgeable and trusted executor may be able to shorten probate and maximize bequests. Courts hesitate to remove an executor named in the will, and do so only upon a showing of incapacity or dishonesty.
Review the probate laws of your jurisdiction to determine whether you have standing to challenge the executor. Since executor challenges delay probate and deplete the estate -- it pays for executor and attorney fees -- many state statutes only allow heirs to object to the qualifications or actions of an executor. A close personal relationship with the deceased is usually not sufficient to confer standing.
Read More: How to Fire the Executor of a Will
Investigate the character and background of the executor, if you intend to challenge on capacity. Recognize that the courts presume an adult to have the capacity for sound reasoning; allegations of mental incapacity must overcome that presumption. Look for evidence of a severe mental, physical or moral limitation making it impossible for the executor to serve. Proof of criminal behavior leading to jail time persuades most courts of moral incapacity.
View your evidence of improper behavior with clear eyes. Although executors owe heirs a fiduciary duty -- the highest duty imposed by law -- only serious infractions constitute grounds for disqualification. Courts will not disqualify an executor because an heir disagrees with her on an investment strategy. Nor will courts listen with favor to heirs' complaints that the executor's progress is too slow or inefficient. Instead, gather evidence of embezzlement, lies to the court, self-dealing or other malfeasance.
Hire a lawyer to file a timely objection. Alternatively, research the probate procedures in your jurisdiction and file your own. Rules governing the timing of most objections vary among jurisdictions. When the court receives an objection, it sets a trial date and notifies other heirs and the executor. Prepare your case, appear on the correct date and present your evidence to the court. Convince the court of the veracity of your allegations. The judge will either rule from the bench -- tell you her decision just after final argument -- or else take the matter under advisement and mail you a written decision later.
Challenges to an executor require amassed evidence and persuasive argument. Consider hiring a lawyer.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.