Can I Sue an Executor of a Will?

Yes. Executors of a will are generally not liable for the debts of the estate they administer. There are, however, at least two situations in which they can open themselves up to personal liability.

The first is if they fail to properly and timely pay a creditor whose claim against an estate has priority. If you are that creditor, suing the executor may be an option.

The second is if the executor acts dishonestly or carelessly in managing and distributing the estate's property. If you stand to inherit under a will, and the executor improperly manages the estate, you might be able to bring a legal action to have them removed. You may be entitled to damages as a result of the mismanagement.

What Is an Executor of an Estate?

Let's back up and start with some terminology. When someone dies, the deceased person is called the decedent. Their property becomes part of the decedent's estate.

If a decedent executed a will before their death, it must be filed with a probate court when the estate has probate assets to distribute. A will is a legal document that sets property division after death.

An executor or other individual must file the will with the court where the decedent had their fixed and permanent legal residence (domicile). The will then typically goes through a court-supervised process of estate administration known as probate.

State laws contain significant variations on how a will must be probated. Sometimes, a will might not be probated if there is no valid reason to do so. Some assets — such as retirement accounts, property owned jointly, and property held in trust — do not go through probate.

As part of the probate process, the probate court appoints an executor (in some states, they are called personal representatives). An executor is typically a person nominated in the will. A spouse or other close family member is a common choice. The executor is legally authorized to act on behalf of the decedent's estate during its administration.

What Does the Executor of an Estate Do?

Generally speaking, the executor's job is to:

  • Pay estate taxes
  • Pay creditors
  • Maintain and distribute any remaining estate funds and property to the beneficiaries

Beneficiaries are those who stand to inherit under the will. An executor must act in good faith and in the best interest of the estate.

Being an executor can be challenging. An executor has several tasks to complete. These responsibilities include:

  • Serving or publishing notice of death
  • Locating the decedent's will and other necessary legal documents (death certificates, titles to property, etc.)
  • Locating and maintaining the estate's property (such as real estate, bank accounts, stocks, bonds, etc.)
  • Determining what state and federal taxes the estate owes and paying them
  • Identifying estate creditors, verifying the amounts the estate owes, and paying them following state law
  • Distributing items specified in the will to the intended beneficiaries
  • Ensuring the estate has representation in probate litigation, including will contests
  • Distributing any remaining property to the beneficiaries according to the will and state law

If you are an executor, this helpful checklist may provide the guidance you seek. You can also speak to a probate and administration lawyer. They can address any questions and concerns.

When Can I Sue an Executor of an Estate?

Generally, executors are not personally liable for the debts of the estate. This has to be the case. Otherwise, finding a willing party to serve as an executor would be incredibly challenging. But if executors are dishonest or careless, they make themselves susceptible to two types of lawsuits. The difference is who brings the lawsuit.

Creditor Claims Against the Estate

The first type of suit against an estate comes from estate creditors. A creditor may be able to sue the executor for an unpaid claim. You must first file a claim to recover a debt against an estate.

What Is a Claim Against an Estate?

Although state law varies, filing a claim is pretty simple. The creditor must state under oath that the decedent owed money to the creditor. The creditor must provide supporting documentation and file this evidence in probate court.

In some states, you may also need to send a copy of your claim to the executor. State law requires a creditor to file a claim within a certain time limit, or else they cannot recover the money.

Executor Must Pay Claims in Order of Priority

If the estate is solvent, the executor should pay your claim before distributing any property to the beneficiaries. If there isn't enough money to pay all the creditors, claims are paid in order of priority as determined by state law.

Sometimes, executors make mistakes. An executor might pay creditors in the wrong order. If there isn't enough money to pay everyone, the estate could run out of money before paying those with priority.

Or an executor might steal money from the estate that otherwise would have paid off a prioritized debt. In such cases, the injured creditor can sue the executor personally. The executor's liability in this situation is limited to the value of the estate assets.

Beneficiary Claims Against the Executor

The second type of lawsuit an executor could face is one brought by beneficiaries of the estate. State law does not require an executor to be a lawyer or some other type of expert. But it does impose the obligation on every executor to do their job with honesty, good faith, and diligence.

This obligation is called a "fiduciary duty." An executor may breach their fiduciary duty intentionally or even unintentionally in any number of ways. For example, an executor may breach their duty by:

  • Not paying taxes or filing tax returns in a timely manner
  • Distributing assets to beneficiaries too soon
  • Making improper investment choices
  • Having a conflict of interest (that is, a conflict between what is best personally for the executor and what is best for the beneficiaries)
  • Self-dealing (buying something for themself or a loved one out of estate property, paying a personal bill out of an estate bank account, etc.)
  • Losing property
  • Outright crime (e.g., embezzlement, etc.)

If the executor fails to meet their legal obligations, a beneficiary can sue them for breach of fiduciary duty. If there are multiple beneficiaries, all must agree on whether to sue an executor.

What can the court do? In most cases, a court can take two actions:

  • The probate court can remove the executor and replace them with someone else. State law varies, but courts generally focus on what is in the best interest of the beneficiaries.
  • A court can hold the executor personally liable and award damages. If the executor's conduct is bad enough, the court can award punitive damages to punish the wrongdoer.

If You Need to Sue an Executor, Consider Consulting a Lawyer

Bringing a lawsuit against the executor of an estate can get complicated. Every state has its own rules about estate litigation and limits on how long you have to file a lawsuit.

If you are a creditor of an estate, consider getting legal advice from a law office specializing in estate management. An estate planning attorney can help you better understand your rights regarding whether you can assert a claim, the timing, and if your claim may be entitled to priority payment.

Even with the best estate planning and management, administration can go awry. You may need to file a lawsuit when an executor wrongfully denies your claim.

If you are the beneficiary of an estate and believe the executor is acting dishonestly or incompetently, you should speak with a lawyer about your legal rights. You may be able to sue to replace the executor, recover damages, or both.

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