Serving as an estate executor or administrator comes with important responsibilities, known as fiduciary duties, that the courts take seriously. Breaching these duties can threaten estate assets as well as the rights of beneficiaries. It can also be a cause for removal of the executor or administrator (both of which are also known as the estate’s personal representative). Although breach of fiduciary duty is one of the most common reasons to remove an executor or administrator, it is by no means the only one. We will examine some of the grounds for doing so and what steps you should take if you suspect misconduct during the estate administration.
Personal representatives – including both executors (named in wills) and administrators (appointed by courts where there was no will) – have considerable authority in how they probate or administer an estate. Nonetheless, they also owe certain fiduciary duties to the beneficiaries of the estate. A fiduciary duty is a legal obligation requiring someone to act in the best interests of someone else. In the context of estate and probate law, those duties include:
Diligent administration of the estate. This means giving the estate the proper attention it deserves. Unreasonably long delays or failure to meet deadlines could jeopardize the value of estate assets and may be considered a violation of this duty.
Self-dealing. Self-dealing occurs when the fiduciary acts in his or her own best interests instead of those of the beneficiaries. It’s a broad term that can apply to a number of different actions.
Allowing estate assets to be lost or stolen. One of the first tasks of the executor or administrator is to locate and secure the estate assets. Any oversight of this that results in property being lost, stolen, or otherwise harmed could be grounds for removal.
Treating beneficiaries fairly. All estate beneficiaries deserve to be treated fairly and to have their rights respected. Picking favorites, or allowing any particular beneficiary to exert undue influence on the personal representative, is a breach.
Misuse of estate assets. Using estate assets for personal gain or enjoyment is not permitted. Neither is commingling estate assets with those of the executor or administrator. The personal representative must act with ordinary care and in good faith when handling estate property.
Criminal activity. Embezzlement of estate assets and other criminal activities are clear-cut examples of a breach of fiduciary duties. The personal representative could even go to jail for doing this.
Breaches of fiduciary duties are one of the most common reasons to remove an executor or administrator. Others include:
- The individual didn’t originally meet the legal qualifications for being a personal representative, or no longer does due to changed circumstances
- The executor or administrator obtained their authority by fraud or mistake
- The personal representative has a conflict of interest that would prevent him or her from properly probating or administering the estate
Any person with an interest in the estate who believes an executor or administrator meets one of the above criteria may file a petition with the probate court to have the individual removed. This petition must clearly state the basis for removal and follow other legal rules. The clerk of the superior court will then schedule a hearing to consider the evidence and decide whether removal is appropriate.
Removing a personal representative is a serious step that should be undertaken only after counsel with an experienced estate and fiduciary litigation attorney. That’s where Patrick, Harper & Dixon, LLP comes in. If you have concerns that an estate is being mismanaged by the executor or administrator, reach out to us today.