When you create an estate plan, the executor is the person who will ensure that it is followed. Most commonly, he or she will be the one interacting with, and distributing assets to beneficiaries, possibly making funeral arrangements, making sure final tax returns are filed, and closing any financial accounts. Given the importance of these tasks, difficulties can quickly arise if an executor doesn’t do their job in an acceptable manner.

Just imagine this scenario. Your parents passed away and named your cousin, Josh, as the executor. Unfortunately, he doesn’t respond to your texts or calls, and neither you nor your siblings can get a hold of him. Funeral arrangements need to be made, bank accounts closed out, and assets need to be distributed to you and your siblings. What are you supposed to do if you are unable to reach him? How should you handle this situation? Well, the first thing to consider is why the executor is not communicating with you.

Why Is Your Executor Not Responding to You?

There are a number of reasons your executor might not be getting back to you, so let’s review them and address what you can do about each, using the example from above.

1. Josh is overworked and has minimal free time. Perhaps Josh wasn’t aware of how much would be involved in managing the estate plan, and he already has too much to juggle in his own life affairs. If this is the case, you could review with Josh what your parents expected to be done, and – if the will allows – ask him to step down or appoint a replacement who has the time. Depending on what the will describes, it may be possible to still follow your parents’ wishes.
2. Josh doesn’t know what to do or where to begin. Let’s say Josh has the time, but he just doesn’t understand all of the legal aspects of executing an estate plan. If he simply doesn’t know what his duties are, you could discuss them with him. If after that, he still isn’t confident about his abilities or feels overwhelmed, you can suggest that he retain an attorney to assist with probate.
3. Josh isn’t capable of performing the duties of an executor. You might love your cousin Josh, and your parents might’ve trusted him to be capable as an executor, but he just isn’t competently completing the required tasks. If this is the issue, and the will isn’t being followed accurately and efficiently, you might need to consider a back-up executor. If Josh refuses to step down, you may even need to go take legal action. If they are incapable either due to unavailability or incapacity, beneficiaries may go to court to force out an executor.
4. Josh doesn’t have your interests as a priority. If Josh is not only neglecting his duties, but also attempting to impact the wishes outlined in an estate plan by taking assets that weren’t willed to him, he should be removed immediately so he no longer has access to the estate’s finances.

Although the circumstances might differ, there may come a time where you have to remove an executor and appoint a new one. But, what does that entail? Let’s take a look at the actual steps involved.

How Do You Get a New Executor Appointed?

If you need to appoint a new executor, there are a few important steps you must take to accomplish this. You should also consult with an attorney about your state’s legislative statutes, or be prepared to research them thoroughly so that you follow the law.

1. Establish cause of removal. A beneficiary can request an executor’s removal. For example, in New Jersey, removal is allowed for issues of failing to complete duties, neglect with filing, ignoring court orders, embezzlement, or refusal to work with co-fiduciaries (those who also are connected to the estate such as beneficiaries or co-executors).
2. Request removal. For requesting the legal removal of an executor, once again it depends on your state. Keeping with the New Jersey example, you must file a complaint to the Surrogate Court in the county where the testator resided. You must have one or more beneficiaries as witnesses to the cause you provided earlier. You must also have an “Order to Show Cause,” which legally requires the executor’s presence to appear in court.
3. Consequences of removal. Once the executor has formally been removed, they are relieved of their duties immediately. Depending on the cause of their removal, they may still be compensated for their time spent in that role. However, a beneficiary can request that the compensation be reduced or removed entirely.

What if You Need a New Executor?

Requesting the removal of an executor is a big deal in court, so you’ll need to provide strong evidence and present your case persuasively. This is why the best way to ensure that your request will be granted, is to discuss the situation with an attorney.

Rosenblum Law has experienced lawyers who will listen to your circumstances and determine if you have a case for removing an executor. They understand how important the estate plan is and will do everything to make sure that it may be executed properly by a capable and trustworthy executor. For a free initial consultation, call us today at 888-235-9021 or click here to send us a message.