if executor hires estate lawyer who mishandles the estate can executor be sued

by Mossie Homenick 4 min read

The Legal Process When an executor breaches her fiduciary duty, you can sue her by filing a lawsuit for damages in civil court. You must establish that she does indeed have a fiduciary responsibility to the estate – she’s accepted the position of executor and this should be clearly confirmed by court documents.

Full Answer

Can executors be sued?

Executors can be sued both in a personal capacity and as executor Executors can be sued personally for illegal or incompetent estate management Minors can sue executors as long as an adult files the lawsuit on their behalf Some of the common lawsuits against executor are fraud, self-interest, and embezzlement

What should I do if the executor of an estate misappropriates funds?

You need to contact an attorney focused in will, trusts and probate as soon as possible. He can review the facts of your situation to determine what to do next. The executor can be ordered by the court to reimburse the estate for misappropriated expenditures and the court has authority to approve attorney fees for either side from the estate.

Does the executor pay attorney’s fees to defend a will contest?

Does the executor or the estate pay attorneys’ fees to defend a will contest? If a beneficiary contests the will, the default is that the attorney who defends the estate’s status quo is being paid by estate funds.

Can a lawyer represent the executor of an estate?

An attorney who’s representing the executor would have a conflict of interest representing the executor in his capacity as executor of the estate and the beneficiaries in their claim against the executor.

How much commission does an executor take on a corpus?

In addition, the executor may take commissions on all “corpus,” which is all the assets controlled by the executor that’s equal to 5% on the first $200,000, 3.5% on the excess over $200,000 up to $1 million, and 2% over $1 million. The executor and the decedent can agree on additional or lesser amounts. The judge can also increase commissions upon ...

Can the executor and the decedent agree on additional or lesser amounts?

The executor and the decedent can agree on additional or lesser amounts . The judge can also increase commissions upon application by the executor or decrease the commissions upon application by a beneficiary. Another possibility is that the executor signed a fee agreement where he waived the fee.

Why is the executor's lawyer's fee paid by the estate?

If the executor is submitting an estate accounting, his lawyer’s fees will be paid by the estate because the accounting is assumed to benefit the estate. Defending that accounting is also assumed to be for the benefit of the estate.

What happens if a beneficiary contests a will?

If a beneficiary contests the will, the default is that the attorney who defends the estate’s status quo is being paid by estate funds. The executor can apply to the court to have attorney’s fees for work that is done on the executor’s behalf to be paid for by the estate out of the funds that are meant to go to that beneficiary ...

When is it important to know how attorney fees are paid out?

It is important for a beneficiary to know how attorney’s fees are paid out when probating an estate, especially if the beneficiary is contesting a will.

Do executors get paid out of estate funds?

In general, executor’s legal fees are paid for out of the estate funds. Additionally, in New York, there is no set amount of attorney’s fees, but rather those fees need to be reasonable. The payment of attorney fees has to take place before gifts are given out to the beneficiaries as with other creditors such as funeral homes or credit cards.

Can an executor pay an attorney with estate funds?

Can an executor pay their attorney with estate funds? It is common for an executor to hire a New York estate attorney to assist in probating an estate. Usually, handling an estate takes work, plus an executor may not know how to deal with every issue that could arise during probate. Many beneficiaries may wonder how attorney’s fees ...

Is legal fee a personal expense?

Legal fees are instead considered a cost of administering the estate, not a personal expense that will be expected of the executor to pay. It is important when hiring an attorney that an executor hires a New York estate attorney who is familiar with what is considered a fair legal fee in New York and who can also handle everything from ...

Do beneficiaries who did not contest a will receive their entire amount?

This is so that beneficiaries who did not contest the will still receive their entire amount and not have their share diminished when they did not contest the will. This is not the case, however, if all beneficiaries benefit from the will contest.

Why do you sue an executor?

Here are some of the reasons to sue an executor: Failed to provide accounting. Displayed favoritism towards another beneficiary.

What are the lawsuits against executors?

Some of the common lawsuits against executor are fraud, self-interest, and embezzlement. Lawsuits against executors may be brought in probate court or small claims court depending on the dollar amount of damages.

What is an executor of an estate?

An executor of an estate is an individual appointed to administer a person’s estate upon their death. Although most estate executors carry out their obligations and treat all beneficiaries fairly, this is not always the case. Some executors show bias towards one beneficiary or prioritize their personal interests.

How to file a small claims lawsuit?

To file a small claims suit, all you need to do is: Log in to DoNotPay and select the Sue Now product. Quantify your damages in monetary terms. Select whether you want a demand letter or court filing forms. Describe the reason for the lawsuit and submit any applicable details, including photo proof.

How long does it take to administer an estate?

Administering an estate may take time depending on its nature and complexity. Some estates take more than a year to administer. However, a good executor keeps the beneficiaries well-informed of delays. Right to Fair Treatment.

Can executors be sued?

Executors can be sued both in a personal capacity and as executor. Executors can be sued personally for illegal or incompetent estate management. Minors can sue executors as long as an adult files the lawsuit on their behalf. Some of the common lawsuits against executor are fraud, self-interest, and embezzlement.

Can a beneficiary request the court to remove an executor?

The beneficiary can request the court to remove an executor if it is proven that the executor is not acting in the best interest of the estate. However, the removal needs to be justified before the court can take action. This protects the executor from unfair removal unless there is a serious breach of obligations.

What can an executor do?

As the executor of an estate, you are responsible for managing the probate process, which means you’ll be interacting with the probate court and making decisions about the handling of probate assets. You will: Open probate with the court. Identify the deceased’s assets. Provide notice to heirs and interested parties.

What happens if an heir believes you are not properly fulfilling your legal obligations?

If an heir or beneficiary believes you are not appropriately fulfilling your legal obligations, they have the right to file a petition with the probate court to get a full accounting of the estate’s assets or to have you removed as the executor.

What happens if a person dies without a will?

If the deceased died without a signed will, the deceased died without a will. No one else can sign it on their behalf, and the estate will be managed in accordance with that state’s laws of intestate succession. Take action to manage the estate prior to being appointed as executor by the court.

Can an executor act against a will?

There are limits on what an executor can and cannot do. If you’ve been named an executor, a couple basic rules of thumb are that you can’t do anything that disregards the provisions in the will, and you can’t act against the interests of any of the beneficiaries. Sounds pretty straightforward, right?

Can a beneficiary contest a will?

He can file a petition with the court contesting the will if he’s an heir-at-law, but you have no authority to make changes to the will. When beneficiaries or heirs contest the will, it’s never fun for the executor. However, it’s their right to do so, and you can’t stop them.

Can you change provisions in a will?

Change any provisions in a will. Just like you can’t sign the will, you cannot change any provisions in the will. If you really like your cousin and you agree with him that he should’ve been named in the will, that’s unfortunate.

Can an executor harm the estate?

That means you must manage the estate as if it were your own, taking care with the assets. So an executor can't do anything that intentionally harms the interests of the beneficiaries. Neither the executor nor the beneficiaries have any rights with regard to the estate before the testator passes away.

What does James Charles Shields do?

James Charles Shields. Executor may use estate resources to execute duites of executor . and defend estate. This may include litigating with beneficiaries. Executor may not use estate resources to advance his/her own private interest.

Can a personal representative be sued?

However as a general rule if the personal representative is being sued in that capacity, he does have the right to use funds from the estate to pay for his defense. You should immediately consult with an estate planning attorney in your area to determine the best course of action.

How to sue an executor for breach of fiduciary duty?

The Legal Process. When an executor breaches her fiduciary duty, you can sue her by filing a lawsuit for damages in civil court. You must establish that she does indeed have a fiduciary responsibility to the estate – she’s accepted the position of executor and this should be clearly confirmed by court documents.

What is the fiduciary duty of executor of will?

Fiduciary Duty. The executor of a will has a fiduciary duty to the estate and its beneficiaries – an obligation to always act in their best interests and not her own. This prohibits her from taking certain actions: She can’t make risky or unsafe investments or transactions on behalf of the estate.

What happens if you win a case?

If you win your case, the executor may be ordered to personally reimburse you for losses you and other beneficiaries sustained because of her actions. If the estate is still open, the executor will most likely be removed from office and someone else will be appointed to serve .

What happens if an estate loses money?

If the estate has already lost money or value, the accounting might provide pivotal, concrete evidence if you also choose to sue him in a separate civil action lawsuit. Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years.

Do executors have to notify the court of an estate?

Although the exact process can vary by state, executors don’ t always work under a legal microscope when settling an estate. After the initial flurry of court filings, they may not be required to notify the court of the estate’s progress until they file the final accountings with the court. This leaves a lot of time and opportunity ...

Do executors have to send copies of wills?

You might begin with a review of the will and any and all documentation you’ve received from the executor – in many states, he has a legal obligation to send copies of all of his written activities and communications to the beneficiaries.

Can an executor sue for wrongdoing?

Beneficiaries and other interested parties – anyone who has a personal financial stake in the estate – can file a lawsuit against an executor for wrongdoing if the wrongdoing results in a financial loss.

What are some examples of executors?

One example is paying bills. As executor, the deceased’s mail has probably already started coming to you, and that mail likely includes bills: medical bills from the last illness, utilities, credit card bills, and so forth. As a diligent executor, you may think you have to pay these bills immediately to keep the finances ...

What is the primary duty of an executor?

As executor, one of your primary duties is to ensure that you have identified and protected all estate assets. This includes everything from costume jewelry to real estate.

What is the job of executor of deceased person's estate?

The executor of a deceased person’s estate is a fiduciary, someone legally and ethically bound to manage assets in the best interests of another party. Like most executors, you are probably eager to do a good job and to take care of estate business in a timely fashion. Unfortunately, the obligations that appear urgent may in fact be less important than others you may not yet be aware of.

What is a fiduciary?

As a fiduciary, you are obligated not only to act in the best interests of the estate and its heirs, but to thoroughly document your actions. This seems obvious in the abstract, but in real life, it is easy to let things slip or to assume that because you have good intentions, everything will work out.

How to know if creditors are notified of death?

Once creditors are notified of the death, they have a limited amount of time in which to file claims. If they don’t file a claim within that time period, it is barred.

What does it mean to not communicate with heirs?

Failing to Communicate with Heirs. As a fiduciary, not only are you obligated to communicate with the estate’s heirs as a business and legal matter, but doing so will also help preserve important relationships.

Why is professional expense paid for out of estate funds?

The expense of a professional is paid for out of estate funds, because these services are a benefit to the estate. 4. Failing to Inventory and Secure Property. When serving as an executor, particularly for a close family member, it is easy to be somewhat casual with assets, especially personal property. Never lend or give anyone (including ...

What happens when an executor attempts to illegally profit from an estate?

When an executor attempts to illegally profit from the estate, interested parties are entitled to sue the executor for fraud. A party may include anyone with a vested interest in the estate's proper closure such as an heir to the estate or a creditor who is denied payment.

What is the responsibility of an executor of an estate?

The executor of an estate is responsible for ensuring that the estate's property is properly cared for during the probate process and that the estate is distributed in accordance with a deceased's will and state laws. When an executor attempts to illegally profit from the estate, interested parties are entitled to sue the executor for fraud.

What is willful act probate?

Tips. A willful act is a key component of fraud cases and may be difficult to prove under some probate circumstances. For example, the executor may claim that he was unaware of any property left out of an accounting, and the suing party will be required to prove otherwise.

Is there a statute of limitations on probate?

States have very strict statutes of limitations on fraud suits in relation to probate. It is better to initiate a suit within that time limit, and subsequently ask for an extension to gather evidence, than to be barred from filing the suit entirely.