How to Change the Executor of a Will Post Mortem

Gathering Evidence

Collect estate documents. The will itself may define whether you have an interest in the estate sufficient to request the court remove the current executor. Other than creditors of the deceased person, you generally must be listed as a beneficiary in the will to have standing to sue. Estate documents include the will as well as any forms filed with the probate court by the executor, such as the petition to enter the will into probate. You typically can get the documents you need from the probate court where the will was admitted to probate. Go to the clerk's office to look at all documents filed in connection with the probate of the estate. You typically must pay a small fee per-page for copies of these documents.

Talk to other beneficiaries. Before you petition the probate court to remove the executor, you want to get a good sense of whether the other beneficiaries agree with you, as well as whether they have additional information about the executor's activities. Generally speaking, your request to remove the executor will carry a lot more weight if all, or most, of the beneficiaries agree with you. However, keep in mind that the court won't remove an executor just because he or she doesn't get along with the beneficiaries. Probate judges have plenty of experience dealing with fighting beneficiaries and family members. To remove an executor, you must be able to prove that person is not fulfilling their duties as set out by the court – personal animosity is not considered a sufficient reason. If there is a family feud at hand, talking with the other beneficiaries can at least give you an idea of how the others will line up, and who will potentially oppose your petition (and what kind of resources they have at their disposal).

Request an estate audit. An audit of the estate can help you uncover evidence that the executor is mishandling assets. However, the executor may refuse to comply with your request. If the auditor refuses, file a petition with the probate court asking the judge to order the audit. An audit – called an accounting in some jurisdictions – gathers information regarding the value of all assets of the estate, as well as all actions taken by the executor regarding the estate's accounts and assets. Typically if you request the probate court to order an audit of the estate, you must be a beneficiary of the estate. You may need the signature of another beneficiary on the request. You also typically must show cause, which may entail a hearing to prove that such an audit would find evidence that the executor is stealing or mishandling assets in some way. If you must file a petition with the probate court for an estate audit, it's usually best to hire an experienced probate attorney to assist you. You can also request an order for the executor to pay for your attorney's fees and court costs associated with the petition.

Document the executor's wrongdoing. To petition the court to remove the executor, you must have concrete evidence that the executor is not fulfilling their fiduciary duties or is otherwise unqualified to perform the role. You're not going to get very far with circumstantial evidence that only creates the appearance of impropriety but doesn't prove that specific violations of the executor's duties are occurring. Concrete evidence typically takes the form of checks written by the executor or legal documents that demonstrate the executor is mishandling estate assets. For example, if the executor registered a deed transferring the deceased person's house into their name, that would present evidence that the executor breached their fiduciary duty to the estate and its beneficiaries. Concrete evidence also can be found in the executor's failure to do something. For example, by showing that they've failed to file required documents to administer the estate, or missed the court's deadline to submit an inventory of the estate assets.

Filing a Petition

Hire an attorney. Because gathering sufficient evidence to remove an executor can be complex, and much of the decision as to whether to remove an executor is within the judge's discretion, an experienced probate attorney can be indispensable to achieving your objective of changing the executor of the will and protecting the interests of the estate. Look for an attorney in the local area who has experience practicing probate litigation specifically in the court where the will has been admitted. An attorney who practices regularly in the probate court also will have a good understanding of the judges. Since much of the removal of an executor depends on the judge's discretion, this experience and understanding can make all the difference in your case. Although attorney's fees can be expensive, keep in mind that you typically can request the fees and court costs be paid by the executor, or out of the estate.

Determine whether emergency action is necessary. Removing an executor using normal procedures can take several months. However, there are expedited procedures available if the risk to the estate is significant and the danger is imminent. Discuss with your attorney whether emergency relief is appropriate in your situation. They will advise you based on the specific actions the executor has taken, or seems about to take. You also may be able to get a temporary restraining order against the executor that would prevent them from taking actions that might be detrimental to the estate, including the sale of any estate assets, until the probate court is able to rule on your petition. Some courts also may have expedited procedures that you can request that will mean the court will consider your petition more quickly than it would otherwise.

Draft your petition. A civil complaint or petition typically doesn't require you to prove any of the allegations you make against the person you're suing. However, a petition in probate court for removal of an executor must "show cause" – specific factual reasons the executor is ineffective or dishonest, backed up by some measure of proof. Your petition will need to include specific details that describe the ways in which the executor is incompetent or ineffective. You also typically should include the name of the person you believe should be appointed in the current executor's place after removal. You also may have a situation in which the executor is not qualified to act in that role according to your state's law. For example, your state may not allow anyone convicted of a felony to serve as executor of an estate. If the executor is a felon, that would be the specific fact you would list in your petition to disqualify that executor. You'll need to attach any documentation you have proving the mismanagement or inappropriate actions taken by the executor. If you've decided not to hire an attorney, some jurisdictions have forms available that you can complete to petition for the removal of the executor of the will. Ask the clerk of the probate court where the will was admitted if such a form is available.

File your petition. Your petition must be filed with the clerk of the probate court to initiate your proceeding. Take your originals along with several copies. The clerk will file-stamp your documents and give you back the copies. You'll need at least one copy for your own records, as well as a copy for every person registered with the court as an "interested party." You can get a list of these people or businesses from the clerk before you file your petition. When you file your petition, you'll have to pay filing fees – typically around $100. If you're representing yourself and can't afford the filing fees, ask the clerk for a fee waiver. If your income and assets fall below the court's threshold, you won't have to pay filing fees for your case. Interested parties typically include beneficiaries and may also include creditors of the deceased person. Keep in mind that in most jurisdictions, you must first have the will admitted into formal probate before you can file a petition for removal of the personal representative. If the will was admitted under summary probate proceedings, it may be necessary to start formal probate first.

Have all interested parties served. In a regular civil case, you typically only have to serve the person or business you're suing. However, in probate court you must have everyone served who has registered with the court as an "interested party" for the sake of the probate of the will. Technically, you can have anyone over the age of 18 who has no interest in the case deliver the documents to each of the interested parties. However, if you have a number of interested parties to serve this can be a lot to ask a friend. The typical method of service is to hire a sheriff's deputy to hand-deliver the documents to each interested party. In many courts you also may have the option of mailing the documents using certified mail with returned receipt requested. Once service is complete, a proof of service document must be completed by the person who served each person and filed with the court.

Participating in Removal Proceedings

Appear at the initial hearing. The judge typically calls an initial hearing, also known as a "return hearing." At this time you will find out if anyone opposes your petition. If no one opposes your petition, the removal process will be less time-consuming. If you've hired an attorney, you may not be required to personally attend this hearing. Your attorney will let you know whether your presence is required. Generally there isn't a lot of testimony or presentation of evidence at the return hearing. Rather, the judge wants to ascertain whether any of the interested parties plan to oppose your petition and what their position is. For example, there may be a group of beneficiaries who don't oppose removal of the current executor, but who disagree with your suggestion of who should be appointed in their place. Based on the opposition, the judge will schedule additional hearings or make other litigation deadlines.

Conduct discovery. The discovery process presents an opportunity for all parties to the proceedings to exchange information related to the petition. If you've already had an audit of the estate conducted, you may not need to complete much discovery. Typically in a probate court you must get permission from the judge before you can conduct discovery. In an executor removal proceeding, any discovery that takes place typically will be limited to written discovery, which includes interrogatories and requests for production. Interrogatories are written questions that the receiving party must answer in writing and under oath. Requests for production ask the receiving party to produce various documents or records related to the proceeding. If you did not request an audit before you filed your petition, you may want to request one at this time. A request for an audit would be similar to a request for production.

Attend the removal hearing. Assuming your petition was opposed, the judge will schedule a hearing to sort out the claims of the parties and determine whether the executor should be removed or any other actions should take place. Since you filed the petition, you typically will have the first opportunity to present your case to the judge. After you've finished, any opposing parties will have a chance to explain why your petition should not be granted. If the current executor is opposing your petition to remove them, they will have a fair opportunity to defend themselves and introduce evidence or call witnesses to support them. You may have to testify at the removal hearing and explain the reasons you filed your petition. You'll take the stand and answer questions from your attorney, but any opposing parties will have the opportunity to ask you questions as well.

Learn the judge's decision. After all the evidence has been submitted and the removal proceedings are concluded, the judge will decide whether to grant your petition. If your petition is granted the executor will be removed and a new executor appointed by the judge. Make sure you get a copy of the judge's written order – especially if you were appointed executor of the estate or were awarded attorney's fees and costs. You'll need the written order to take further steps to enforce it. If the judge grants your petition to remove the executor, he or she may appoint a new executor at the same time or schedule a hearing to appoint the new executor.