What to do about an executor who will not perform their duties?

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What to do about an executor who will not perform their duties?

When my sibling died I became the owner to his house. But the executor refuses to give me the key. Additionally, although the executor should have paid for the funeral, I ended up having to pay because the executor refused to. I have requested reimbursement but the executor’s attorney said that all of the heirs must be located before he can reimburse me. While the attorney and executor claim to be searching for the heirs, they are paying themselves and using up all of the money and resources. It is going on 2 years. Soon all of the money will be gone. Is that legal?

Asked on November 20, 2011 under Estate Planning, North Carolina

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

There may well be a breach of "fiduciary duty" by this executor. This is the duty that is implied when someone is put in a position of trust to benefit other, such as that between an executor and beneficiary. Accordingly, an executor must at all times exercise good faith. This means that they must put the interests of the beneficiaries and/or the estate above their own. Further, an executor must follow state statute as it pertains to the distribution and/or handling of estate assets.     

From the facts that you have presented, either fraud and/or negligence may be at play in your situation.  You, as a beneficiary, should contact the appropriate probate court and/or consult directly with a probate law attorney. The executor may be removed for breach of their duty. If so, you will need to have someone else appointed. They can challenge any transactions/transfers that may have been made which were not in the best interests of the estate/beneficiaries. An accounting will have to be made.  The executor can be held personally liable for any losses, and if they are bonded (insured) you may also have recourse against the insurer to recoup losses.


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