What if the executor of the will cannot be trusted to be fair?
The probate process varies by state, but for estates that go through the probate process the executor of a will files a petition with the court to obtain formal approval to act. All interested parties to the estate should receive copies of the executor's petition, and have the opportunity to formally object to the appointment with the court.
If an estate beneficiary believes an executor is not trustworthy, he should object with the court as soon as possible, preferably before the appointment of the executor. Many lawyers advise clients not to appoint friends or family members as estate executors, since most individuals do not have the proper expertise to settle an estate. It is easy for family and friends to disagree over estate settlement, which is why it is a good idea to have an independent executor appointed. Most courts will not appoint an executor if an estate beneficiary objects. Consequently, if an objection occurs, the objecting beneficiary should have an executor ready to accept the appointment that all estate parties will agree to.
Executor Already Appointed
If the estate executor appointment is already in place by the court and a beneficiary does not believe the executor is acting properly, he may want to consider obtaining legal counsel to protect his interests. A careful review of all estate documents including the last will and testament, the estate inventory and all legal estate pleadings should occur to ensure the estate is properly settled. If any actions by the executor are inappropriate or dishonest, the lawyer can immediately petition the court to have the executor removed.
A solution to ensure an executor acts properly without removing the executor is to request the court to have the executor post bond. An executor's bond acts like an insurance policy against impropriety, estate fraud or embezzlement, and is in place to ensure the executor carries out his duties in a diligent manner. Even if a will states that no bond is required of the executor, estate beneficiaries suspicious of the executor can request the court require bond posting.
Beneficiaries can sue executors that do not properly administer an estate for breach of fiduciary duty, but the process can be expensive and lengthy. As an example, upon death tobacco heiress Doris Duke's estate was worth approximately £0.8 billion. Ms. Duke appointed her trusted butler to serve as executor but he acted improperly and used estate funds for his own purposes. The intent was for the estate to distribute to charity and a lengthy legal battle ensued. The matter finally settled after three years of legal action with the executor receiving millions of dollars to step aside. The legal settlement occurred simply to stop an ongoing and expensive legal battle, and to get the funds to the rightful beneficiaries. This is a good example as to why beneficiaries should obtain a lawyer and intervene as soon as possible if there is possibility that an estate has an untrustworthy executor.