Taking legal action against an executor

Taking legal action against an executor

On Behalf of | Aug 15, 2023 | Estate Planning

There are two scenarios in which you would consider taking legal action against an executor. The first scenario is when an estate representative fails to take timely action to satisfy a claim made by a creditor based in New York or elsewhere. The second scenario is when an estate representative does not abide by a fiduciary duty toward the estate’s beneficiaries.

Failing to satisfy creditor claims

Creditors have a right to seek payment for credit card, auto loan or other outstanding balances remaining at the time of your death. Priority creditors such as a state or local government may also be able to seize estate assets to satisfy back tax or child support obligations. As soon as possible after your passing, your executor must notify creditors either directly or by publishing a death notice in a local paper.

Breaching a fiduciary duty

During the probate and estate administration process, the executor must make decisions that are in the estate’s best interest. For instance, an executor cannot use estate funds to pay personal bills. An executor is also supposed to secure assets and ensure that they are available for distribution at the end of a probate case. However, if the executor made an honest mistake, a judge may find that the beneficiaries have no or limited recourse. It’s also important to consider that all beneficiaries must agree to file a lawsuit before such action can be taken.

Anyone who is an adult of sound mind can serve as your executor. If you fail to appoint one in your will, a judge will appoint someone on your behalf. You also have the right to appoint an alternate executor in the event that your first choice is unwilling or unable to serve for the duration of a probate case.

Read More