If my cousin is the executor of my late aunt’s estate but has mishandled things, what to do to see that her Will is probated and how do we get an audit?

My aunt died 2 months ago but her Will has not been entered into probate. We cousins are the heirs in the Will. My one cousin, her POA and her executor, has spent every dime on himself. Also, my aunt had a housethat she left that to 3 other cousins. My cousin, the executor, is delaying probate because he knows family members will ask for an audit.

Asked on October 7, 2014 under Estate Planning, Kentucky

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Sorry to hear about your aunt.

If your aunt's Will includes provisions pertaining to the removal of the executor and the appointment of another executor, follow those procedures.

If the Will is silent as to removal of the executor and does not name an alternate executor, the beneficiaries can file a petition with the Probate Court to have the executor removed and another executor appointed.  The beneficiaries (heirs) can also demand an accounting.

If the current executor has misappropriated estate assets, the remedy the beneficiaries should seek in Probate Court is a constructive trust.  A constructive trust will require the executor to return misappropriated assets to the estate.  If the executor has used misappropriated funds to purchase real or personal property for himself, the constructive trust can be used to trace the misappropriated estate assets to the wrongful acquisitions by the executor and the executor will be ordered to return those items or their value to the estate.


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