An executor of an estate has many duties and responsibilities, and sometimes they fail to live up to them. Fortunately, California law allows for the removal of an incompetent or unethical executor under certain circumstances. Such cases are more common than you might think, especially in high net worth states like California. Executors do not have absolute and unlimited authority over estate assets and beneficiaries. Their powers are defined by the legal documents appointing them, and they are legally accountable to state courts and state laws. If an executor abuses his or her power, or appears negligent or reckless in managing estate assets, it may be necessary to file a petition for their removal in probate court. Read on below for more detailed information on how to remove an executor of estate in California.
What is an executor of estate or administrator of will?
An executor of estate, or administrator of will, sometimes called a “personal representative,” is responsible for legitimizing and stewarding an individual’s will in probate court after their death. The executor or administrator is generally chosen by the will’s creator, and is named within the will document itself.
Executors and administrators of wills are usually close family members or friends of the deceased. Parents often select their most responsible child for this role because an executor or administrator must be able to handle a great many tasks in a timely and precise fashion. They must initiate and manage the legal process of probate, pay any taxes and debts due from the estate, distribute assets and property to beneficiaries, sell off assets as required, and more.
Note that an executor of a will can also be a beneficiary of it, and usually is. In most cases, this doesn’t cause problems, but in some cases, an executor who is also a beneficiary may act in their own best interest, to the detriment of other beneficiaries. If you suspect this is the case, you should consult a probate litigation attorney as soon as possible.
Can you remove an executor of estate?
Yes, you can remove an executor of estate under certain circumstances in California. California State Probate Code §8502 allows for the removal of an executor or administrator when:
- They have wasted, embezzled, mismanaged, or committed a fraud on the estate, or are about to do so.
- They are incapable, incompetent, or otherwise unqualified to carry out their duties.
- They have wrongfully neglected the estate, or have long neglected to perform an act related to its proper management
- The removal of an executor or administrator is otherwise deemed necessary for the protection of the estate or its interested parties
- There is any other cause for removal per violation of state laws
California has fairly liberal and broad laws governing the removal of an executor. It’s important to note that interested parties can petition to remove an executor even before they have taken wrongful or ill-advised action. This is why it is always in a beneficiary’s best interest to consult a good estate litigator sooner rather than later. In many cases, damage can be prevented before it is done.
How much does it cost to remove an executor?
This depends entirely upon your specific case. You can and should get a more detailed estimation at a free consultation with a probate lawyer focused on litigation. Don’t be afraid to specifically ask your attorney about their strategy for driving down litigation costs. An experienced estate attorney will know how to proactively stop an executor from drawing out proceedings in an attempt to rack up prohibitive attorney’s fees and costs.
At RMO, we always try to create opportunities for clients to have decision points to get results sooner and for less legal spend. What that often means is creating leverage to settle cases in mediation, out of court, because doing so saves lots of time, money, and stress. While an executor usually recovers their attorney’s fees from the estate if they win, the threat of paying fees out of pocket should they lose is often enough to bring them to the bargaining table.
If you succeed in removing an executor, the court will decide if your lawsuit benefitted the trust or not. If they decide that it did, your attorney’s fees generally will be paid by the estate or in some cases, the personal funds of the removed executor.
Do I petition to remove an executor of an estate?
A petition to remove an executor, or an application to remove an executor, is a legal motion filed with a probate court on behalf of an interested party to a will or estate. A petition for removal alleges that the current executor is unfit for their position due to negligence, misconduct, or incapacity. The petition for removal is often filed alongside a petition for a replacement executor.
Once the petition for removal is filed, the negotiation process can begin. Ideally, an out-of-court settlement can be reached between the parties, via the assistance of their mediating attorneys. At RMO, we have an excellent record of securing significant settlements for our clients in these cases. Make sure your lawyer does, too.
If your case does progress to a court hearing, the parties to the suit will likely be required to attend, and all other interested parties may be invited to give testimony. Once the court reviews the evidence and the judge decides if the executor should be removed they will order the removal and appoint a replacement executor. Keep in mind that the removal of an unfit executor does not protect him or her from further civil liability. If the executor did harm to the estate or its beneficiaries, the replacement executor may be required to pursue additional litigation against them in the interest of compensating the estate.
What is a motion to remove an executor?
A motion to remove an executor is a legal document filed in probate court when an interested party to a will or estate believes its executor is acting in a manner unlawful, unethical, or negligent enough to justify his or her removal. An estate litigation attorney will draft your motion for removal and help you gather all evidence supporting your case. You will want to obtain accounting records of the estate, if possible, and any written evidence or correspondence that helps validate your claims. You may also seek out witnesses willing to testify to support you.
When you file a motion to remove an executor, you may also ask the courts to temporarily suspend an executor’s powers until your case is resolved. This can help prevent an executor from taking any disadvantageous action while litigation is underway.
How do I remove an executor?
To remove an executor of estate in California, you should first consult with the best probate litigation attorney in your area, which consultation is usually free. After your initial consultation, you’ll know whether you have a good case, how likely you are to prevail in court, and roughly how much it will cost to pursue litigation.
If you decide to proceed, your estate lawyer will file a petition to remove the executor in probate court. From there, you may either reach an out-of-court settlement agreement, or have your case heard in front of a judge. The judge will review the evidence and decide whether the executor should be removed. If the just grants the petition for removal, a new executor may also be appointed by the court at that time. The replacement executor may or may not be the same person who filed the petition for removal.
Can an executor remove a beneficiary?
Generally speaking, no. Except in the rarest of cases involving special (and often unenforceable) provisions, an executor cannot remove a beneficiary from a will. To the contrary, the executor is directly answerable to the beneficiaries. As a fiduciary, executors are legally obligated to place the interests of the estate and its beneficiaries above their personal interests at all times. Removing a beneficiary from a will is obviously not in the best interest of the beneficiary, and any executor claiming to have the power to do so should be treated with a high level of suspicion.
How do I remove a beneficiary?
In almost all cases, you may only remove a beneficiary from a will if you are the creator of the will. An executor or administrator generally has no power to remove beneficiaries or adjust their share of assets. Any creator of a will who wishes to remove or change beneficiaries is strongly advised to do so under the supervision of a licensed attorney, in compliance with state formalization requirements. Failure to do so may create confusion as to which version of a will is the enforceable one.
Can you replace an executor?
Yes. If an executor of estate is removed either voluntarily or by motion from an interested party, the courts may appoint a new executor to serve in their place. If the petitioner has also filed a petition for a replacement executor, the courts may grant that replacement after granting the removal. Sometimes, the person petitioning for the removal of the existing executor is then appointed as the new executor. Other times, a nominated third party serves as the successor executor. The court will review all potential and willing candidates, and appoint the person judged to be most competent.
Before you attempt to remove or replace an executor of estate, understand that simply disagreeing with an executor’s decisions is not sufficient to convince a judge that the executor should be removed. That said, an executor has many duties and responsibilities under the law — many that they often aren’t even aware of, such as maintaining a bond, buying property insurance, or getting explicit court approval before making transactions and disbursing assets . If you can prove that an executor has breached any of their statutory fiduciary duties, you have valid legal standing to challenge their fitness for the position.
Can a co-executor be removed?
Yes. A co-executor of estate may be removed on the same grounds as a sole executor, and also when the co-executor is acting unilaterally without the consent or cooperation of other executors. When co-executors are appointed in a will, they must agree on any action proposed before taking it. Both executors must sign off on any legal documents or transactions relating to the estate. If any disagreement exists between co-executors, neither one may take action. Sometimes, a co-executor may “go rogue” and make important decisions regarding trust assets without the knowledge or approval of their appointed partner. When this happens, a petition to remove the offending co-executor may be initiated either by an interested party like a beneficiary, or by the other executor of estate.
Can I remove an executor from a will before death?
Yes. A creator of a will is free to remove or replace an executor at any time before his or her death, provided they are of sound mind and have capacity to do so. It is imperative that the maker of a will work under the advisement of an estate lawyer when making any changes. All state-mandated procedures for formalizing such changes must be strictly adhered to for any amendments to be deemed enforceable. If you have an existing will and you know you want to change executors or beneficiaries, you should do so now, rather than waiting until the eleventh hour. When major changes are made close to death, opportunistic parties may claim that the deceased was incapacited or wrongfully pressured into making such changes and, therefore, the will is the product of undue influence and invalid and unenforceable.
Can I remove myself as the executor of estate?
Yes. An executor of estate cannot be forced to serve as such if they feel they are unable or unqualified to do so. Again, the duties and responsibilities of an executor are many. It’s a very time-consuming, complex, and often stressful role. Accepting an executor appointment may also open an individual up to personal liability should they mismanage the estate in any way — intentionally or accidentally.
Understandably, some executors ultimately decide they simply aren’t up for the task. Perhaps they just don’t have the time, the energy, or the expertise to do the job well. Or maybe they’re too emotionally overcome with grief to handle tasks they thought they’d be able to. Whatever the case, if an executor wishes to remove themselves from their position, they may file a notarized renunciation form with the probate court, detailing their reasons for stepping down. In almost every case, the court will grant the resignation and appoint a replacement executor to take over.
When should I contact a probate litigation attorney?
You should contact a probate litigation attorney the moment you suspect that an executor is acting against the estate’s best interests, or failing to live up to his or her duties. We cannot stress enough that it is better to act now than to wait until precious resources have been squandered or mismanaged.
At RMO, as with most reputable trust litigation firms, our initial consultation is free. We want to hear the facts of your specific case, and if we don’t think we can win it, we won’t take it. That’s how we maintain our winning record and the trust of our clients, courtrooms, and communities.
We recommend finding an experienced trust litigation attorney familiar with the county probate court in the county where the will is being administered. For example, if the executor of estate lives in Miami, Florida, but the will is being probated in Los Angeles, California, we recommend working with an executor removal lawyer in Los Angeles. A Los Angeles probate lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.
Have questions? Contact us for a free consultation.
(424) 320-9444 or [email protected]
About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com