You may not think about challenging the individual named as the Executor under the Will. While many Will contests are about trying to set aside a Will of a loved one because you felt you were unfairly left out of the Will, what happens if you were named in the Will but the Executor has failed to do anything?
It is important to understand the role of the Executor. An Executor serves in a “fiduciary capacity.” An Executor has a fiduciary duty to an estate. They are in charge of:
- Probating the Will,
- Collecting the assets of an estate,
- Paying the debts and taxes, and
- Properly distributing the assets of the estate pursuant to the terms of the Will.
Executors are held to a higher burden, meaning they MUST put the interests of the beneficiaries and estate ahead of their own. It is also important to note that a Trustee also serves in a “fiduciary capacity.” A Trustee MUST put the interests of the beneficiaries and Trust assets ahead of their own. They have much of the same responsibilities as an Executor, however, it is the terms of a Trust document they must follow.
An Executor or Trustee can breach their fiduciary duty when they put their own interest above that of the beneficiaries and estate. Examples of a breach of fiduciary duty include:
- Failing to timely pay the debts.
- Failing to timely distribute the assets of the estate to the beneficiaries.
- Mismanaging the assets of the estate.
- Using the assets of the estate for their own personal use.
- Failing to follow the terms of the Will.
- Paying themselves a large amount of money to serve as the Executor.
- Improperly selling assets of the estate.
If you think that an executor or trustee is not properly doing their job, we recommend speaking with an experienced Probate attorney to discuss your options.
Call our office at 214-559-7202 or contact us online to speak with one of our knowledgeable probate attorneys.