Removing an Executor for Misconduct or Theft

A big courtroom battle over a loved one’s last Will and Testament may make for great TV, but when it happens in real life, it’s very stressful and painful, as many past family wounds are reopened. While we try to prevent these situations through good estate planning, sometimes probate litigation is simply unavoidable.

What is Probate?

Probate law governs how an individual’s possessions and assets are distributed after death. Probate is a court-administered process for determining how a decedent’s assets are distributed after death. Whether you have a will or pass away without one (called intestacy), many decedents’ estates will go through Probate. Most of the time, these matters are routine and handled without conflict. However, there are times when legal contest arises, which is when probate litigation becomes necessary.

What is an Executor?

When Pennsylvania residents prepare their wills, they normally designate trusted individuals to serve as the executors of their estates. Executors have several important fiduciary duties and must act in the best interests of the decedent’s heirs. An executor’s job begins immediately after the person dies. Some of the jobs of an executor include:

• Locating the decedent’s Will and presenting it for probate;

• Identifying and gathering all of the assets of the decedent;

• Identifying the beneficiaries who are entitled to receive assets;

• Selling any assets of the decedent;

• Paying inheritance and death taxes attributable to the decedent’s estate;

• Paying any outstanding bills and debts of the decedent;

• Distributing all liquidated assets to the Decedent’s heirs and beneficiaries.

Typically, an executor manages an estate with utmost integrity and ability. Unfortunately, not every Estate management is administered smoothly. An executor may not pay bills or sell property in a timely manner. Taking too much time to sell real property is typically not misconduct.

Types of Executor Misconduct

Misconduct generally arises from acts or activities over which the executor has direct control. Worse, an executor may mismanage the Estate or engage in self-dealing with the Estate. Some examples of executor misconduct include:

•  Delaying or refusing to offer the Will for probate;

• Failing or refusing to provide family members with information about the Estate;

• Failing to timely gather assets belonging to the Estate;

•  Permitting real property to fall into disrepair;

• Misappropriating Estate assets that are intended for beneficiaries;

•  Mixing the Executor’s personal funds with the Estate’s funds;

•  Failing to pay creditors or inheritance taxes; and

• Withholding distribution of inheritances to beneficiaries.

When the heirs to an estate want to remove an executor, they must petition the probate court and show that they have valid grounds.

What is Probate Litigation?

Probate litigation is a lawsuit filed by a probate attorney in a Pennsylvania probate court when there is, for example, a dispute over a will. Probate litigation can also become necessary in situations where a person has become incapacitated and can no longer manage their affairs, requiring a guardian, in situations where there is a dispute regarding who should be a guardian or in situations where someone is suspected to be abusing their role of guardian.

Probate litigation can also become necessary in situations where someone with power of attorney is suspected of misconduct or stealing money from their loved one.

Contesting a Will

Contesting a will is probably what comes to mind for most people when they hear the words probate litigation. Common grounds for contesting a will in Pennsylvania include:

• Undue Influence: this can reveal itself in a variety of ways. Sometimes a family member believes the deceased was pressured or coerced into including or excluding individuals in their will. Often it is believe that a family member used their close relationship with the deceased to cause them to change a beneficiary form, retitle accounts or outright give money to the bad actor. These are common situations where undue influence leads to probate litigation.

• Invalid Will: if the testator (the person who created the will) failed to follow Pennsylvania requirements for signing a Will, e.g. it lacks the signatures of two impartial witnesses – then that can create grounds to contest.

• Mental incapacity: if a family member believes the deceased was not of sound mind – for example, if the testator suffered from Alzheimer’s or dementia – when the will was created and signed, or when accounts were changed shortly prior to death, then a family member might contest the Will.

It’s also important to note that only certain people – called an “interested party” – can legally bring will contests. These individuals are those who would legally be heirs if there were no will and those who were named in previous wills but are now not named.

A probate attorney can help you determine whether you have grounds to contest a will and, if you do, can file a claim on your behalf with the probate court.

Pennsylvania Probate Litigation Attorneys

Probate litigation matters are usually fraught with intense emotions, often pitting family members against each other during times of grief. When so much is at stake, it’s critical to find an experienced probate attorney you can trust to act in your best interest while handling your case with sensitivity and compassion, like those at Fiffik Law Group, P.C. Contact us at 412.391.1014 to schedule an assessment with a probate attorney in our Pittsburgh, Allison Park or Radnor Pennsylvania offices.