The executor of a will is the person chosen by the testator (deceased) to speak for him in the settlement of his estate and carry out the instructions set out in the will. Any attempt by the beneficiaries to remove the executor, for any reason, leads to an adverse court proceeding with each side represented by an attorney .
Removal is not easy. The beneficiaries must prove serious misbehavior before the court will consider forcing an executor to step down. This can be difficult. In most challenges, the following behaviors have not been grounds for removal:
- Rude and unfriendly to beneficiaries
- Acting like the estate belongs to him
- Repeatedly refusing to give the beneficiaries information
- Keeping estate funds in a bank account instead of investing
- Moving too slowly on settlement of the will
In general, the courts will only remove an executor if the beneficiaries can show that he is incapable of performing his duties, is unsuitable for the position, or has become disqualified since the deceased appointed him.
To become disqualified, the courts have required that the executor has been convicted of a crime (unrelated to the estate) and sent to jail. To be found incapable of serving, the beneficiaries have to prove the executor has a physical or mental handicap, whether permanent or temporary, that prevents him from performing his duties. Unsuitability is the toughest one to prove, as the courts are always interpreting the situation at hand. Unsuitability usually involves either a conflict of interest, causing the court to question the executor's ability to serve impartially, or some form of serious misconduct.
A conflict of interest might occur, for example, if the executor is required to sell stock from the estate to a company in which he is a stockholder. Even then, if the deceased was aware the executor was a stockholder before his appointment as executor, no conflict exists. Even if the deceased was not aware, however, the court is unlikely to remove him unless the executor sells at a price unfavorable to the estate.
Other misconduct, which may be grounds for removal must be fairly serious and actually damaging or threatening to damage the estate. Examples of such behavior might be:
- Habitual drunkenness
- Stealing from the estate
- Failure to file an inventory or accounting
- Failure to obey a court order
- Failure to perform duties as executor
- Waste or mismanagement of the estate (vague terms so the court must decide if the executor's actions or inactions constituted waste or mismanagement)
With executors, misconduct is not always clear and may not always result in removal.
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