The executor of an estate is responsible for ensuring that the estate's property is properly cared for during the probate process and that the estate is distributed in accordance with a deceased's will and state laws. When an executor attempts to illegally profit from the estate, interested parties are entitled to sue the executor for fraud. A party may include anyone with a vested interest in the estate's proper closure such as an heir to the estate or a creditor who is denied payment.
Gather evidence of fraud. Fraud is the knowing, material misrepresentation of facts to another person for the purposes of effecting a particular action or event. Evidence of fraud may include not informing an heir of his rights, purposefully leaving items out of the accounting of the estate's assets and misrepresenting the executor's management of the estate such as investment strategies.
Obtain and complete the appropriate civil suit forms from the county court clerk's office in the county in which the probate is being handled. Request additional instructions for filing the lawsuit, particularly if the probate process is ongoing.
Consult or hire a qualified attorney to ensure all possible legal remedies will be covered.
File the forms with the county court and proceed with the lawsuit.
A willful act is a key component of fraud cases and may be difficult to prove under some probate circumstances. For example, the executor may claim that he was unaware of any property left out of an accounting, and the suing party will be required to prove otherwise. In these situations, a party may find it easier to sue the executor for negligence, which has a lower threshold for proving a case.
States have very strict statutes of limitations on fraud suits in relation to probate. It is better to initiate a suit within that time limit, and subsequently ask for an extension to gather evidence, than to be barred from filing the suit entirely. In many states, this statute is two years, in accordance with the model probate code.