What is the procedure for firing an executor?

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What is the procedure for firing an executor?

I would like to obtain a probate attorney on a contingency basis. I would like to fire my brother as executor of my parent’s estate. My parent’s home is owned outright and is the only asset left. I am afraid that he will take the home because he and my sister-in-law are inflating and running up bills, then charging them to the estate. They will not provide receipts for anything, not even a copy of the original checking/savings account my dad had at the time of death on 03/25/09. I am a full-time student without any income. Property is in IL.

Asked on November 19, 2010 under Estate Planning, California

Answers:

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

Answered 10 years ago | Contributor

From the facts presented, it appears that there has been a potential breach of "fiduciary duty" by the executor (your brother).  Fiduciary duty is the duty implied when someone is put in a position of trust to benefit other, such as that between an executor and beneficiary.  Accordingly, a fiduciary must at all times exercise good faith and put their interests second to the interests of the beneficiaries and/or estate.  Also, an executor owes a duty to exercise its obligations in accordance with the Will under which it was appointed.  Additionally, the executor must also follow the law as it pertains to the distribution and handling of estate assets.  The failure of a fiduciary to perform their duties may give rise to a claim.   

Based on the fact that the doesn't want to provide receipts, account statements and the like there may well be either fraud, negligence, and/or similar misconduct afoot.  Therefore, you can contact the probate court in question and/or consult directly with a probate attorney on all of this immediately.  You can challenge your brother's role as executor and have him removed for breach of his fiduciary duty.  Additionally, you will then need to have someone else appointed who can challenge any transfers and transactions that may have been made which were not in the best interests of the estate (and get the money refunded), and move to have an accounting of the estate.  If your brother, in his capacity as executor, is bonded (insured) you may also be able to go after any insurance money to recoup losses, if any. Again, a probate lawyer can best guide you in this.


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