Written By:Scott Glatstian
Your Dedicated & Trusted Legal Team
3 Generations & 100+ Years of Combined Legal Experience
When a loved one passes, the beneficiaries of their estate are often left waiting while the estate goes through the probate process. When the person who passed away left behind a will, the distribution of their estate assets will be overseen by an executor who was chosen when the will was created.
It’s easy for a beneficiary to put all their trust in the appointed executor as they wait. However, sometimes the trust between the beneficiary and the executor is broken. When a beneficiary can not trust their executor, the beneficiaries must understand their rights and how they can protect their inheritance.
What Is an Executor?
The best way to know how to fight for one’s rights is to understand what a person is up against. The deceased person appoints an executor to fulfill their wishes as stated in the will. During that time, the executor manages the estate’s financial assets. Executors can be friends, family members, or lawyers. The person choosing their executor has full authority over who they designate for the role, as long as the person appointed is 18 years of age or older, and they are of sound mind.
Because the executor has many complex duties, a person seeking to pick an executor for their will should follow these tips.
- If possible, pick a person that lives in the same state as you. The state of New Jersey allows a person to be an executor outside the state. However, it can make the process complicated. For starters, the non-resident executor will have to post a bond, which ensures that the appointed executor will do right by the state and the will of the deceased person. Bonds may be required of any executor even if they are in state, but most wills remove this requirement, according to N.J. Stat. Ann. § 3B:15-1. There may be yet another reason it is more feasible to select an in-state resident for . The executor may have a lot to do within your state and handle day-to-day matters over an extended period of time. For example, if the deceased person had real property to deal with, the executor may need to travel back and forth to the state (or arrange for trusted professionals to work with). The bottom line is that it will depend on the specifics of the situation as to whether it will be cumbersome for an out-of-stater to fulfill their responsibilities.
- Choose a detailed-oriented and organized person. There can be a lot of financial or other matters to attend to.
- When you identify a candidate, have a discussion with them about the responsibility of being an executor.
- Choose a person willing to seek professional help when needed. If you have an estate planning attorney, it would be wise to have them guide you through the process of selecting the right person.
- Lastly, pick a person who is objective and fair. This can make it easier if you have many beneficiaries.
Along with picking an appointed executor in their will, the deceased loved one can also name backup executors in the will. If the original executor can’t do the job, then the court will choose the backup for the role if they meet the requirements.
In the event the person did not create a will, then a person that was close to the deceased family member can apply to become an administrator to the estate, which is the court’s term for an executor when there is no will in place. If beneficiaries don’t approve of the potential executor/administrator, then a court can appoint a third party to be the executor of the estate.
What Are the Executor’s Duties?
Before you can do anything as executor, you must go through the probate process. The person appointed needs to take the will down to the probate court to file a copy of the will. A 10-day wait period must transpire from the death of the loved one before a will can be probated. The surrogate court (a court that handles the administration of the estate) will then authenticate the will, and the appointed executor will be authorized to proceed with their duties.
The probate process can be complicated. The person needs to be detail-oriented. The effect of mishandling this process is a delay in beneficiaries getting their inheritance. Although the executor doesn’t need a lawyer to handle this stage, they should invest in one. A lawyer will be able to help navigate the process and make it move along faster in some cases.
An executor should be vigilant to ensure everything goes according to plan. Such duties include:
- Informing entities of loved one’s death. Those parties include beneficiaries, heirs, creditors, banks, and government entities. This will help with the cancellation of bills and subscriptions and the closing of bank accounts. Death certificates will be needed for this stage.
- Paying outstanding debts of the loved one. Ensuring credit cards, utility bills, and the like are paid off.
- Ensuring they have a detailed inventory of the deceased assets. This will include bank accounts, retirement accounts, property, antiques, and other valuables.
- Contacting all beneficiaries that are named. They will have to do this within a 60-day timeframe.
- Creating a trust if instructed to do so for certain beneficiaries within the will.
- Filing a final tax return. This will settle all taxes that are owed on the estate. If the deceased was entitled to a refund, that money will also go to the beneficiaries.
- Distributing the assets to the beneficiaries as stated in the will after the estate’s taxes and bills are settled.
What to Do When an Executor Is Problematic?
The executor is legally responsible for doing right by the beneficiaries and completing the required duties. But suppose the appointed person exploits their position by doing things for their interest or mishandling estate assets. Under certain circumstances, they can be removed from the position by order of the court. The beneficiaries can also take legal action for misdeeds of the executor.
According to New Jersey law, a person can be legally removed from their role if they:
- Do not file an inventory, render accounts, and/or properly secure assets
- Neglect a court order or forget to handle a judgment within a specific time frame
- Embezzle or illegally misappropriate estate funds
- Are not capable of conducting state probation functions
- Refuse to cooperate with a legal entity appointed to resolve estate matters
- Permanently leave the state of New Jersey and neglect their duties
A person who wishes to remove an executor must file a request with the court. The person will also have to have evidence of wrongdoing against the executor. When a loved one has named multiple beneficiaries, it’s important to note that each beneficiary still has their own individual rights. If one family member feels wronged, but the others do not, that person can still bring an action to resolve problems with their executor.
If the executor’s actions have resulted in significant loss and the beneficiaries choose to sue, they are responsible for discovering and submitting their own evidence. They will also be accountable for showing what is owed to them. In New Jersey, there is no statute of limitations for suing your executor for wrongdoing. However, the longer you wait, the harder it may be to prove your case.
If the court agrees to remove the current executor, they will replace them with someone else. The person would have to turn over all of the deceased person’s assets within 60 days. If the executor has done dishonest actions or fraudulent behavior, then they can be sued for their actions. However, if an honest mistake was made by the executor, they could be shielded from liability.
Where Can You Get Help?
Seeking professional assistance is best when dealing with a neglectful executor. A lawsuit is a complicated matter; doing it without help will put beneficiaries at risk of not receiving justice. People in this situation should seek legal advice. The attorneys at Rosenblum Law are experts in estate planning and their advice can help you navigate the process, whether you are a beneficiary or an executor. Contact us today for an initial consultation.
Rosenblum Law is committed to delivering informative content of the highest quality. All content is subject to our rigorous editorial standards for relevance, accuracy, sourcing, and objectivity. Everything is fact-checked by an editor and reviewed for legal soundness by one of our practicing attorneys prior to being published.
How to Cite Rosenblum Law’s Article
Scott Glatstian (Jul 19, 2022). Read This Before Creating Your Will Online. Rosenblum Law Firm, https://rosenblumlaw.com/read-this-before-creating-your-will-online/
Scott Glatstian "Read This Before Creating Your Will Online". Rosenblum Law Firm, Jul 19, 2022. https://rosenblumlaw.com/read-this-before-creating-your-will-online/