When an executor is not communicating with beneficiaries, the beneficiaries may lose their patience and bring a proceeding to compel the executor to file a judicial accounting. A good executor will avoid this costly step. Accordingly, this is the kind of information that the executor should provide to the beneficiaries:
- What is the executor planning to do
- What stage is the probate in
- Is there anything that the beneficiaries need to do
- When are the beneficiaries getting forms to sign and what are the forms
- How much money and assets are in the estate
- What are the major expenses of the estate
- Is the executor planning to sell real estate, and if yes, when
- When is the executor sending out the distribution checks
They think that the executor is hiding something from them. And they feel that the executor could be doing something that will result in the beneficiaries not getting their fair share of the estate from the executor. Here is what the beneficiaries suspect the executor of doing:
- hiding money
- hiding information
- stealing money from the estate
- taking property from the estate
- making mistakes
- not making the right decisions
- ignoring executor responsibilities
An executor is a fiduciary, meaning that he has a duty to exercise the utmost good faith and undivided loyalty toward the beneficiaries throughout the relationship. Some might argue that the duty to exercise “good faith and undivided loyalty” includes a duty to communicate. An executor “must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing.”  Again, some might argue that the principles of fair dealing include a duty to communicate. Here are a few scenarios that shed more light on this issue.
The executor does not realize the importance of communication: Sometimes the executor does not know that the beneficiaries expect him to be communicating. This is especially true for a first-time executor. If that is the case, a phone call, email or letter may clear up this misunderstanding. It’s good for the beneficiary to give the executor a call and ask what’s going on with the estate.
The executor is not a good communicator: Some executors are not good at communicating. They think that as long as they are doing everything right, they do not have to advise the beneficiaries. If that’s the case, then it’s good for the beneficiary to take the initiative and open up the channel of communication.
Arrogance: Some executors relish the feeling of power and control, and they want to extend that feeling into an ability to keep the beneficiaries in the dark. A beneficiary who is proactive and is represented by a competent attorney can taper some of that arrogance by showing the executor that they don’t have unlimited power, that they have responsibilities and that there are rules that they have to follow.
Incompetence: While some executors are just confused, some other executors end up making mistakes that are costly to the estate. If that’s the case, the next step for a beneficiary would be to compel the executor to file a formal accounting with the court. In a formal accounting, an executor is obligated to disclose what assets are in the estate, what the estate’s expenses were and what assets are available for the executor to distribute to the beneficiaries.
Misconduct: A minority of executors go as far as to steal from the estate and mismanage the estate and then attempt to cover up their misdeeds by not communicating with the beneficiaries. Beneficiaries do have recourse against an executor who violates his duty to the estate. The recourse involves court intervention. The beneficiaries can bring a proceeding to have the judge of the Surrogate’s Court compel the executor to file an account of the estate.  If ordered to submit an accounting, the executor will have to submit the accounting to the court, usually within thirty to sixty days.
An accounting is a set of schedules that include all possible information about the estate, such as
- an itemized list of the assets that are in the estate
- the funds or property received by the estate
- the expenses of the estate
- the beneficiary distributions already disbursed and
- the beneficiary distributions yet to be disbursed
Beneficiaries and their estate attorney can review the schedules and decide that they are satisfied with the information. Or, the beneficiaries can compel the executor to provide all of the documents associated with the estate as well as the executor’s personal documents. Beneficiaries are entitled to documentation, such as
- account statements
- closing statements
- copies of checks
- tax returns
- loan applications
Every executor not communicating with beneficiaries needs to realize that the miscommunication is short term. Beneficiaries do get their information eventually, whether the executor wants it or not. It is better for the executor not to upset the beneficiaries. It is best for the executor to communicate with the beneficiaries. Avoiding acrimony means saving having to go through the stress and expense of litigation.
Some executors think it’s too early to communicate: An executor who has not been confirmed by the court yet might think that it’s too early to communicate anything substantial to the beneficiaries since he has not started doing anything yet. Someone who has been nominated as the executor by the will but is not yet appointed by the court might think that they are not an executor yet. The law states that “an executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted, except to pay reasonable funeral expenses, nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it.  An executor who has not been appointed might think that it’s too early to communicate anything substantial to the beneficiaries since he does not even have the power to do anything yet. This is a misunderstanding that an estate lawyer can easily resolve.
Do you have a situation with the executor not communicating with beneficiaries or withholding information? Or if you are an executor and you think that the beneficiaries are wrongly accusing you of misconduct? If so, you can get in touch with me. I am New York estate lawyer Albert Goodwin, and I can be reached at (212) 233-1233.
 Leon C. Lazer, et al., New York Pattern Jury Instructions – Civil § 3.59 (2d ed. 2006); see also Sokoloff v. Harriman Estates Development Corp., 96 N.Y.2d 409, 416, 754 N.E.2d 184, 729 N.Y.S.2d 425 (N.Y. 2001); Lamdin v. Broadway Surface Advertising Corp., 272 N.Y. 133, 138, 5 N.E.2d 66, 67 (N.Y. 1936);
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