The person tasked with administering a deceased New Jersey resident’s estate is called the executor. He or she is appointed by a probate court in the country where the decedent resided, and it is usually the person the decedent named in their last will and testament. If a deceased New Jersey resident did not leave a will, the probate court will appoint a responsible person to act as the estate’s administrator.
The Duties of an Executor
Executors are fiduciaries. This means they have a legal obligation to act in the best interests of the estate and its beneficiaries at all times. Executors are expected to discharge their duties responsibly, honestly and effectively, and they can be removed or sued if they do not. During the probate process, an executor will:
· Present the decedent’s will and death certificate to the probate court.
· Inventory the estate’s assets and liabilities.
· File state and federal tax returns and pay any outstanding taxes.
· Settle the estate’s debts.
· Distribute the estate’s assets according to the terms of the decedent’s will or state intestacy laws.
Taking Legal Action to Remove an Executor
If an executor acts negligently or dishonestly, the estate’s beneficiaries can initiate a legal action to remove them. The beneficiary or beneficiaries that seek to remove an executor must have valid grounds, and they must be able to provide clear and convincing evidence that shows the executor’s actions are harming or could harm the estate or its beneficiaries. This is why it is a good idea to consult with an experienced New Jersey estate litigation lawyer before filing paperwork to remove an executor.
A beneficiary who wishes to remove an executor must file a formal complaint in the Superior Court located in the county where the decedent resided. This complaint must include a certification that details the executor’s alleged negligence or malfeasance. The beneficiary must also submit an Order to Show Cause that will be signed by a judge and directs the executor to respond to the complaint. New Jersey law allows executors to be removed if they:
· Fail to secure estate assets, create an accounting or file an inventory.
· Refuse to obey a judgement or court order.
· Lack the skills needed to discharge their duties.
· Refuse to perform their duties.
· Embezzle funds from the estate or misappropriate estate assets.
· Refuse to work with co-fiduciaries who have been appointed to help administer the estate.
The court will not remove an executor because of a personal disagreement with a beneficiary or because they are also a beneficiary and have a perceived conflict of interest, but an executor may be removed before any misconduct has occurred if future harm seems likely. When an executor is removed, they must transfer the estate’s assets to the successor administrator appointed by the court. They must also provide an accounting of the actions they took while acting as the estate’s executor.
Suing an Executor
If an executor breaches their fiduciary duty, they can be sued by the estate’s beneficiaries or creditors and held personally responsible for their actions. Executors can be removed to prevent harm, but they cannot be ordered to pay damages unless their actions have caused it. Creditors may sue an executor if they distributed assets before settling the estate’s debts or did not follow the debt priority rules established by New Jersey law. Beneficiaries may sue an executor if they distributed assets to parties not named in the decedent’s will, liquidated assets for less than their fair market value, embezzled assets or failed to safeguard assets.
Lawsuits against executors must be filed within time limits established by New Jersey’s statute of limitations. Beneficiaries or creditors have six years to file lawsuits seeking damages for economic losses, but litigation seeking compensation for emotional or physical harm must be initiated within two years. Judges may give plaintiffs more time in certain situations. This sometimes happens when executors have acted egregiously, or beneficiaries did not find out they were named in a will until the state of limitations deadline had passed.
Evaluating a Legal Claim Against an Executor
If you believe that an executor is unqualified, incompetent, negligent or dishonest, you can petition the court to have them removed. You can also file a lawsuit against the executors if their dishonest or negligent actions caused you harm. However, the courts are reluctant to remove executors unless they are presented with clear and convincing evidence that harm has occurred or will occur, and civil lawsuits must be supported by a preponderance of the evidence. This is why it is wise to discuss these matters with an experienced New Jersey estate litigation lawyer before taking action.
If you would like to schedule a consultation to discuss and executor’s performance or any other estate planning matters, you can contact the Knee Law Firm by calling (201) 996-1200. Our office is located in Paramus, New Jersey, and our attorneys are standing by to assist you.