- The Will says one thing but the Executor is doing something else!
- Can the Executor collect a fee for ‘doing nothing’?
The title “Executor” or “Executrix” carries a certain weight but the responsibility of administering an estate includes the obligation to act in the best interests of the beneficiaries when making decisions. This set of obligations is known as the executor’s fiduciary duty. In New Jersey, an executor’s fiduciary responsibilities include:
- Conducting an inventory of estate assets;
- Disclosing all estate assets and debts to the beneficiaries;
- Keeping beneficiaries reasonably informed about the estate’s business; and
- Making distributions of estate assets in accord with the Will.
These are in addition to many other duties, such as sending notice of probate to beneficiaries, paying taxes and funeral costs, and additional administrative efforts.
When an executor fails to honor these duties, a Court may remove the executor or executrix from their role administering the estate. To ask a Court to consider such a request or in fact to do anything – Courts and the Offices of County Surrogates do not actually supervise the administration of estates – the beneficiary would have to file a petition laying out the essential facts and applicable laws, a job best left to an attorney. In certain cases, an executor may have nominally violated their duty in such a manner as to not warrant removal. For example, an executor may interpret the directions in a Will different than a beneficiary, but the end result may not have an impact that amounts to a breach of fiduciary duty. The Court tasked with making this decision, a court of equity, will weigh many different factors and is empowered to craft any solution appropriate to the circumstances.
Removal of an executor or executrix is a drastic remedy. Usually, it is a punishment reserved for those who violate a court order, misappropriate estate assets, fail to file taxes, or engage in fraudulent conduct to further their own personal interests. If an executor is removed, generally all commissions are forfeited. An executor’s commission, a figure calculated along certain statutory schedules that are outside the scope of this article, is often a significant amount of money. An executor is entitled to commissions even if only a modicum of work is required to administer and close an estate. In most cases, executors deserve more than they are allowed to receive, especially when the executor is able to calm a family that becomes turbulent regarding inheritances.
There are exceptions to every rule and the above circumstances are not intended to be exhaustive or directly applicable to the situation you may need to address.
If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.
Written by Christopher Balioni, Esq. of Hanlon Niemann & Wright