Absolutely. Although executors commonly are not responsible for the debts of the estate they oversee, there are at least two instances in which they can open themselves up to personal accountability. The first one is if they fail to correctly and timely pay a creditor that has a claim against an estate has precedence. When you are that creditor, you might be able to sue the estates executor.
The second is if they act untrustworthy or recklessly in overseeing and distributing the property of the estate. Should you stand to inherit through a will, and the executor incorrectly oversees the estate, you might be able to sue to have them withdrawn or to recoup damages.
What Is an Estates Executor?
When an individual passes away, their property becomes part of what is referred to as their estate. The deceased individual is referred to as a decedent.
If the decedent had a will, their will is required to be filed with the court where the decedent had their permanent legal residence. The will then usually goes through a court-overseen process of estate administration referred to as probate.
Don’t forget that state laws differ greatly on how and even if a will should be probated. And some assets, such as a lot of retirement accounts, certain jointly owned properties, and property held in trust, are not going to go through probate.
As a portion of the probate process, their court names an executor (in some states they are known as a personal representative). This is usually an individual named in the will, a spouse, or another close relative. The executor is approved by law to act on behalf of the decedent’s estate throughout its management.
What is the Executor of an Estates Duties?
Generally, the executor’s responsibility is to pay taxes on the estate, pay owed creditors, and maintain and allocate any leftover property to their beneficiaries. They should act in good conscience and in the best interests of the estate.
Being an executor is not an easy job — there is a lot of responsibility to take care of. Which is going to include:
- Serving or publishing notice of the decedents passing
- Finding the decedent’s will and other required legal documents (death certificates, titles to property, etc.)
- Locating and maintaining the estate’s property (like real estate, financial institution accounts, holdings, etc.)
- Establishing what state and federal taxes the estate is liable for and paying them
- Determining estate creditors, establishing the amounts the estate is liable for, and paying them according to state law
- Distributing specific items established in the will to named beneficiaries
- Distributing any leftover property to the beneficiaries according to the will and state law.
When Can I Sue an Estates Executor?
Generally, executors are not personally responsible for the debts of the estate. If they were, no one thinking clearly would be happy to serve as one. But when executors are dishonest or reckless, they can open themselves up to two different kinds of lawsuits.
A Creditor of the Estate Could Sue the Executor for an Overdue Claim
The first kind are those brought upon by estate creditors. To recoup a debt towards an estate, you first are required to file a claim.
What Is a Claim Against an Estate?
Even though state laws differ, filing a claim is straightforward. You declare under oath what the decedent has owed to you and file that through probate court. In some states you may also be required to send a copy of the claim to the executor. Just about every state has a requirement that a creditor file a claim within a specific time limit, or they are unable to recoup.
The Executor Has the Obligation to Pay Proper Claims in Order of Precedence
If the estate has adequate assets, your claim should be paid out prior to the executor distributing any property to the beneficiaries. If there isn’t sufficient funding to pay all of the creditors, then claims are paid in order of precedence as established by state law.
But occasionally executors make mistakes. They could pay creditors in the unordered and run out of funding prior to paying those with precedence. Or they could outright pilfer money from the estate that otherwise would have paid off a prioritized liability. In such circumstances, the owed creditor is able to sue the executor personally. The executor’s obligation in this situation is restricted to the amount of the estate’s assets.
The Estate Beneficiaries Can Sue the Executor
The second kind of lawsuit is those brought upon by beneficiaries of the estate. Even though state law doesn’t necessitate an executor to be an attorney or some other kind of professional, it stipulates the responsibility on every executor to fulfill their duty with trustworthiness, integrity, and perseverance.
This responsibility is referred to as a “fiduciary duty.” An executor might infringe on their fiduciary duty knowingly, or even unknowingly, in a variety of ways.
For instance, an executor might infringe on their duty by:
- Failing to pay taxes or filing tax returns in a timely fashion
- Allocating assets to beneficiaries prematurely
- Making unacceptable investment decisions
- Having a conflict of interest (the conflict among what is ideal personally for the executor and what is ideal for their beneficiaries)
- Self-dealing (purchasing something for themselves or a loved one out of estate property, paying personal bills from an estate financial institution account, etc.)
- Forfeiting property (losing things or, allowing insurance to lapse bringing about damaged property, etc.)
- Out and Out crime (for instance larceny, etc.)
Should the executor fail to fulfill their legal obligations, a beneficiary can sue them for infringement of fiduciary duty. When there is more than one beneficiary, all beneficiaries are required to agree in order to sue an executor.
What is the court able to do? Typically, two things:
- The probate court can withdraw the executor and replace them with another individual (state law differs, but courts usually concentrate on what is in the beneficiaries’ best interest)
- A court can hold the executor personally accountable and award damages (and, when the executor’s behavior is quite badly, punitive damages aimed to punish the offender).
Should You Need to Sue an Executor, Consider Consulting a Lawyer
Bringing about lawsuit towards the executor of an estate can get complex. Every state has its own regulations concerning estate litigation and restrictions on the time in which, should you need to, you are able to file a lawsuit.
If you are the creditor of an estate, think about getting legal counsel from a law office that specializes in estate management. They are able to help you better comprehend your rights in regards to if you can state a claim, the timing, and when your claim may be entitled to precedence of payment. Even with ideal estate planning and management, it can go askew. So if your claim is mistakenly denied, you might need to file a lawsuit.
If you are the beneficiary of an estate and think that the executor is behaving either dishonestly or poorly, you should talk to a lawyer concerning your legal rights. You might be able to sue to withdraw the executor, recoup damages, or both.
Steven J. Ellison, E. (2022, June 6). Can I sue an executor of a will? Findlaw. Retrieved October 19, 2022, from https://www.findlaw.com/estate/estate-administration/can-i-sue-an-executor-of-a-will.html
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