How long does it take to remove an executor completely from an estate? About a year. But only if they deserve it.
Can you prevent an executor from acting even before they get removed? Yes, you can can get an order from the court restraining the executor from acting and suspending their powers until the matter of their removal is decided.
Before we as how long does it take to remove an executor, we have to figure out if even it’s possible to remove the executor in your case. An executor was nominated by the will of the person who died, so we can presume that the person who died trusted the nominated executor to carry out their duties. The executor was probably confirmed by the court, meaning that the court looked at the executor’s candidacy and approved them to act as the executor. Once they are appointed by the court, you can only remove an executor if they violate their fiduciary duty to the estate and its beneficiaries.
As person with the legal power to manage someone else’s property, an executor is a fiduciary. This is a special role that comes with many responsibilities. The executor is responsible for proper management of the estate, and does not have the right to get a benefit at the expense of the estate’s beneficiaries. When executors don’t perform their duties, the court can remove them.
Acting an executor is a big responsibility, and one needs to be careful not to do the wrong thing. A court can remove an executor on the grounds of misconduct when they
- Steal from the estate
- Fail to follow the terms of the estate
- Mismanage estate assets including bank accounts, stock, bonds, retirement accounts, pensions
- Fail to take inventory of assets, including personal and real property
- Be negligent or careless in investing assets
- Sell personal and real property below market price
- Fail or refuse to distribute assets
- Fail to pay creditors
- Fail to pay funeral expenses
- Fail to file an estate tax return if required, fail to pay estate taxes and back income taxes
- Fail to notify the court of change of address
- Mismanage a estate business or sell it below market value, whether to himself or to someone else
- Take over the estate business for the executor’s own gain
- Commingle estate funds with his own funds
- Keep estate funds in a personal account (you need a estate account)
- Ignore beneficiaries
- Fail to communicate with beneficiaries
- Keep beneficiaries misinformed about estate and financial matters
- Favor one beneficiary over another
- Fail to wind up and settle an estate
- Refuse to distribute assets to the beneficiaries
In an executor removal proceeding, the beneficiaries ask the court to appoint a different executor. If the court finds fault with the executor, the court can remove an executor and possibly forced to make restitution for improper gains. If the court removes the executor, the court may replace them with the person who applied for their removal, a closer relative, or someone from the court’s list of executor who offer their services to the public. How long will that take? Depends on the facts involved.
An executor is named by the testator (the person who made the will) at the time a will is made. The executor cannot fail to carry out the wishes and intent of the testator and cannot act in bad faith, fail to represent the best interests of the beneficiaries at all times during the existence of the estate and fail to follow the terms of the will. And most importantly, the executor cannot steal from the estate. If an executor fails to follow those rules, the court can remove the executor.
There are all sorts of other contractual or legal matters that may require an executor’s attention. For instance, if the testator owned commercial property and had tenants, the executor may have to collect rents, work with a property management company or hire one depending on the size of the building and the number of tenants. A court can remove an executor for failing to properly value assets and complete contractual obligation.
How long does it take to remove an executor for stealing from the estate? About a year, but you can get an order temporarily suspending them. There are significant penalties for stealing from an estate. The court can discharge the executor and replace them with someone else, force them to return the money and take away their commissions. There can also be criminal a penalty, but most estate theft allegations do not escalate to criminal prosecution.
How long does it take to remove an executor for taking more funds than the executor is entitled to? About a year and a half, but you can get an order temporarily suspending them.It can be tempting for an executor to take some extra cookies from the cookie jar. You have access to estate funds and the power to take some funds out. You don’t see anyone looking over your shoulder. But that sense of safety is false. Banks and courts have systems in place to detect fraud. Beneficiaries can get suspicious and hire a estate attorney or report the suspect to the police and hire a estate attorney to get the inheritance that they are entitled to.
How long does it take to remove an executor for self-dealing? About a year and a half, but you can get an order temporarily suspending them.The executor cannot transfer estate property to himself because the property belongs to someone else unless he pays the full price for it. As explained above, doing so can be interpreted as stealing and can lead to an array of legal woes. A smart executor would want to avoid transferring estate assets to himself, even if paying fair and market value. If beneficiaries are getting more money than they would have, if not for the executor buying them out, the executor should explain it to the beneficiaries. For example, the executor can explain the savings on transaction costs, such as not having to pay a broker. There must be a feeling that the executor fulfilled his responsibilities to the beneficiaries.
How long does it take to remove an executor for commingling funds? About a year, but you can get an order temporarily suspending them.The executor should place all estate funds into a estate account and not into his personal account. New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 11-1.6 states that “Every fiduciary shall keep property received as fiduciary separate from his individual property. He cannot invest or deposit such property with any corporation or other person doing business under the banking law, or with any other person or institution, in his own name, but all transactions by him affecting such property shall be in his name as fiduciary.” Surrogate’s Court Procedure Act – SCP § 719 states that the court can take away a person’s power to manage the estate “where he mingles the funds of the estate with his own or deposits them with any person, association or corporation authorized to do business under the banking law in an account other than as fiduciary.”
How long does it take to remove an executor for using estate funds for personal expenses? About a year, but you can get an order temporarily suspending them. The executor can only use estate funds to pay the legitimate expenses of the estate, taxes and legal fees.
An executor is held a higher standard of behavior and is expected to act in an honest, fair and ethical manner. An executor cannot breach their fiduciary duty. They could be held legally liable for any losses suffered by the estate or beneficiaries. A court can remove an executor for breach of fiduciary duty and can be subject to restitution of any financial losses to the estate and beneficiaries, as well as face criminal charges if the executor committed any crimes such as embezzlement of estate assets.
A court can remove an executor for a number of reasons, facing hassle, stress and legal fees in the process. Because of that, some family members decide they do not want to take on the job and end up resigning and hiring an attorney or another personal representative to replace them and administer the estate.
At the Law Offices of Albert Goodwin, we handled many executor removal proceedings. You can call us at 718-509-9774 and we can discuss how long it would take to remove an executor in your specific case, if possible.