The death of a parent is not easy to handle, even if the death is anticipated. The legal process that follows, referred to as “probate,” is often the last thing anyone wants to deal with; however, it is necessary to properly account for the decedent’s assets and distribute those assets to the intended beneficiaries. While probate can be frustrating under the best of conditions, it can be especially difficult when it appears that the Executor is not properly executing his/her duties and responsibilities. The Los Angeles attorneys at Schomer Estate & Wealth Advisors discuss red flags that might indicate your parent’s Executor needs to be replaced.
What Does the Job of Executor Entail?
One of the decisions that a Testator (creator) of a Last Will and Testament must make is the appointment of an Executor. The Executor is responsible for overseeing the probate of the estate after the death of the Testator. Probate is the legal process that is usually required to settle the estate of a decedent. Several important things happen during probate, including the authentication of the Last Will and Testament submitted for probate, litigation of any challenges to the Will’s authenticity, an inventory and valuation of the decedent’s assets, payment of creditor claims and other debts of the estate, and distribution of assets to beneficiaries and/or heirs of the estate. The Executor is responsible for making sure that all the steps required during probate occur in a timely and efficient manner.
Executor Red Flags
If one of your parents recently passed away, you are a legal heir to the estate and may be a named beneficiary. The difference is that a legal heir is entitled to inherit from the estate under the state’s intestate succession laws while a beneficiary is specifically gifted something in the decedent’s Last Will and Testament or in a trust agreement. Either way, you certainly have a legitimate interest in the probate of the estate. Usually, the Executor moves the estate along through probate without reason for alarm or worry; however, there are some red flags that could indicate the Executor is not (or will not) fulfilling his/her duties and responsibilities as required by law, such as:
- Conflict of interest. A Testator can appoint anyone he/she wants to be the Executor. There is nothing illegal or inherently wrong about a beneficiary or even a creditor of the estate being appointed as the Executor, but it is reason to keep an eye out for conflicts of interest. The Executor’s fiduciary duty is to the estate, not to himself or herself.
- Missing important deadlines. Missing important deadlines, such as the deadline for publishing notice or filing taxes, could indicate that the Executor is not devoting sufficient time and attention to the job.
- Failing to communicate with beneficiaries and heirs. If the Executor is not keeping you informed, and will not respond to requests for information, it could be a red flag.
- Failing to defend the Will. If someone contests the Will, the Executor is responsible for defending the Will. Failing to do so is a problem.
- Failing to honor the Will. The Executor is required to honor the terms of the Will as they are written, regardless of how the Executor feels about those terms. Failing to do so is a good reason to have the Executor removed.
Can an Executor Be Replaced?
If you believe that the Executor of your parent’s estate is not properly fulfilling his/her duties and responsibilities during the probate of the estate, consult with an experienced probate attorney about your legal options. The court where the estate is being probated has the authority to remove and replace the Executor; however, you will need to file the appropriate petition with the court to effectuate the replacement.
Do You See Executor Red Flags?
For more information, please join us for an upcoming FREE seminar. If you believe that an Executor is not doing his/her job as required in California, contact the experienced Los Angeles probate attorneys at Schomer Estate & Wealth Advisors by calling (310) 337-7696 to schedule an appointment.
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