Can I Sue an Executor of a Will?

What Is an Executor of an Estate?

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 if the estate has probate assets to distribute. The decedent’s will should name an executor to undergo the court-supervised process of estate administration known as probate.

State laws vary significantly in how to administer a will in probate. For example, 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) if the will does not name one. Be sure to check with the decedent’s estate planning attorney first to confirm the decedent did not name an executor in their 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. An executor must act in good faith and in the best interest of the estate.

What Does the Executor of an Estate Do?

Generally speaking, the executor’s duties include the following:

• Pay estate taxes

• Pay creditors

• Manage the estate’s accounts

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

Beneficiaries are those who stand to inherit under the will.

Being an executor can be challenging. An executor has several tasks to complete. These responsibilities include, but are not limited to the following:

• 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. Otherwise, it would be incredibly challenging to find a willing party to serve as an executor. However, 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.

Get Legal Help

If you are the beneficiary of an estate and believe the executor is mismanaging the estate, you should speak to a probate and estate administration attorney. They are experts in probate and estate administration and can give you sound legal advice about estate litigation and suing the executor. Speak to a local probate and estate administration attorney today.