What If The Executor Does Not Do The Job?

When Ted's mother passed away in Minnesota, everyone in the family agreed that his sister Nancy should be the executor or personal representative of Mom's estate.

When six months had passed and nothing was getting done, Ted and his four other brothers and sisters began to get concerned. What was worse was that Nancy seemed to be taking most of the assets and when they left messages for her, Nancy would not return their phone calls. When they finally confronted Nancy, she became angry and defensive.

Finally, Ted and his other siblings decided they had to do something to get Mom's estate moving along. They also worried what Nancy was doing with Mom's property.

When Ted called the attorney who was handling the estate, the lawyer told Ted that Nancy was his client and he couldn't talk to Ted.

What's the next step?

Ted and his brothers and sisters need to get an attorney for their own who can confront Nancy and her attorney to get answers. Ted and his siblings will need to demand a full and accurate accounting of all income and expenses of the estate.

If Nancy delays too long or if the assets are not properly used or accounted for, Ted could ask the probate court to remove Nancy as executor and appoint him or another sibling as the next executor.

If no one in the family can take over from Nancy, it may be possible to hire a neutral executor who is not related to the family in any way. Getting an outside neutral does create an additional expense for the estate and it may mean that all of the heirs get a slightly smaller inheritance. However, getting a neutral executor can help assure that everything is done right and that all the heirs and creditors are treated fairly.

If the family is all right with Nancy staying on as executor, they may ask that she be required to post a bond to assure that she will do the job properly. A bond is a form of insurance policy issued by an indemnity company. It is not always easy to get the indemnity company to pay for any losses, but that is still better than not having that protection.

If the executor commits serious violations of the probate law, the probate court can impose a cash penalty on the executor. This penalty is called a surcharge. The courts are sometimes reluctant to impose surcharges, but it is a tool the court can use.

As you can see, the probate court has a number of tools at its disposal to keep the executor in line and performing his or her job properly.

However, it is important for heirs to know that the court will not initiate most of these safeguards on its own. It takes vigilance among all the heirs and a willingness of the heirs to take legal action when an executor is not doing his or her job.

The contents of this article are for information only and is not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning.