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Can I Sue an Executor of a Will?

Yes. Although executors generally are not liable for the debts of the estate they administer, there are 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, you may be able to sue the executor.

The second is if they act dishonestly or carelessly in managing and distributing the property of the estate. If you stand to inherit under a will, and the executor improperly manages the estate, you may be able to sue to have them removed or to recover damages.

What Is an Executor of an Estate?

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

If the decedent had a will — a legal document that sets out how their property is to be divided after death — the will needs to be filed with the court in which the decedent had their fixed and permanent legal residence (their domicile). The will then typically goes through a court-supervised process of estate administration known as probate.

Note that state laws vary greatly on how and even whether a will must be probated. And some assets, like most retirement accounts, certain 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). This is typically a person nominated in the will, a spouse, or some other close family member. The executor is authorized by law to act on behalf of the decedent's estate during its administration.

What Does the Executor of an Estate Do?

Generally speaking, it's the executor's job to pay estate taxes, pay creditors, and maintain and distribute any remaining property to the beneficiaries (those who stand to inherit under the will). They must act in good faith and in the best interest of the estate.

Being an executor isn't easy — there is a lot of work to do. That includes:

  • Serving or publishing notice of death
  • Locating the decedent's will and other necessary legal documents (death certificates, title 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 in accordance with state law
  • Distributing specific items identified in the will to identified beneficiaries
  • Distributing any remaining property to the beneficiaries in accordance with the will and state law.

You can learn more about an executor's duties here (and if you happen to be an executor, here is a helpful checklist you can speak with a probate and administration lawyer about so that you have a better sense of what you need to do).

When Can I Sue an Executor of the Estate?

Generally, executors are not personally liable for the debts of the estate. If they were, no one in their right mind would be willing to serve as one. But if executors are dishonest or careless, they can open themselves up to two different types of lawsuits.

A Creditor of the Estate May Be Able to Sue the Executor for an Unpaid Claim

The first type is those brought by estate creditors. To recover a debt against an estate, you first need to file a claim.

What Is a Claim Against an Estate?

Although state law varies, filing a claim is pretty simple. You state under oath what the decedent owed you (and provide any supporting documentation) and file that in the probate court. In some states you may also need to send a copy of your claim to the executor. Virtually every state requires a creditor to file a claim within a certain time limit or they cannot recover.

The Executor Has the Responsibility to Pay Proper Claims in Order of Priority

If the estate has enough assets (in other words, if it is solvent), your claim should be paid before the executor distributes any property to the beneficiaries. If there isn't enough money to pay all of the creditors (if the state is insolvent), then claims are paid in order of priority as determined by state law.

But sometimes executors screw up. They might pay creditors in the wrong order and run out of money before paying those with priority. Or they might outright 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 amount of the estate assets.

The Beneficiaries of the Estate May Be Able to Sue the Executor

The second type of lawsuit is those brought by beneficiaries of the estate. Although state law does not require an executor to be a lawyer or some other type of expert, it imposes 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 yourself or a loved one out of estate property, paying a personal bill out of an estate bank account, etc.)
  • Losing property (lost things or, letting insurance lapse resulting in damaged property, etc.)
  • Outright crime (e.g., embezzlement, etc.)

If the executor fails to live up to their legal obligations, a beneficiary can sue them for breach of fiduciary duty. If there is more than one beneficiary, all beneficiaries must agree in order to sue an executor.

What can the court do? Generally two things:

  • 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 (and, if the executor's conduct is bad enough, punitive damages intended 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 regarding estate litigation and limits on the time in which, if you need to, you can file a lawsuit.

If you are a creditor of an estate, consider getting legal advice from a law firm that specializes in estate management. They 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 of payment. Even with the best estate planning and management, administration can go awry. So if your claim is wrongly denied, you may need to file a lawsuit.

If you are the beneficiary of an estate and believe that the executor is acting either 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.

Next Steps

Contact a qualified estate planning attorney to help you ensure that your loved ones are cared for and your wishes are honored.

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