Posted by Martin Heller Potempa & Sheppard, PLLC on August 27, 2020
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A question posed by many families who recently lost a loved one is, “Does the executor of the will have the final say?” The answer isn’t exactly clear cut. If the executor of the will has abided by the will and was conducting their fiduciary duties accordingly, then yes, the executor does have the final say. However, there are instances where the executor does not.
What are the executor’s responsibilities?
Once an individual or individuals have been appointed the executor(s) of a will, he or she must be made known of the will, the wishes of the deceased, etc.
Very simply, the responsibilities of the executor are to notify beneficiaries of the estate, manage the deceased’s unfinished business, manage and close bank accounts and close debts, and disseminate and protect assets.
But what happens if the he or she is not acting in good faith?
Common Concerns Against Executors
Be it the heightened emotions of the loss of a loved one or internal family conflict, in some cases, beneficiaries of an estate may have concerns about the length of time it is taking the executor to manage the deceased’s affairs.
Common concerns against executors include:
Things are taking too long. Though some estates may take anywhere from 10 months to a year to settle, when time begins to drag too much, family members may wonder if the executor is acting in a self-serving manner.
Accounting errors. Whether the estate is large or small, any accounting errors at the end of the executor can raise red flags.
Failure to sell real estate. Whether the executor is living in the home of the deceased or is simply not moving forward with the sale of the estate, beneficiaries often have concerns about what the motive is for not closing the sale and allowing everyone to move forward.
If it is found that he or she has not acted in good faith in any of the above circumstances, you may have a case of breach of fiduciary duty.
Breach of Fiduciary Duty – Removing the Executor?
In Tennessee, beneficiaries will need to file a petition with probate court alleging grounds for removal of the executor if a breach of fiduciary duty is suspected. To have a successful breach of fiduciary duty claim, the family must prove:
Existence of duty
Breach in that duty
Damages resulted from the breach
Sometimes, in addition to removing the executor from the estate, you may also be able to sue for assets not given to you.
To bring about successful litigation, the beneficiary must show that there was:
A failure to pass accounts
Fraud or misconduct
Endangering the assets
Conflict of interest
Failure to pay taxes
These lawsuits are seldom straightforward, so it is advisable to truly review the intent of the executor before starting the process.
When it comes to Tennessee estate planning, we understand that the naming of an executor you may not necessarily know and trust can be difficult for the family to comprehend. However, you are able to ask questions, push the legal issues, and seek guidance if you feel the executor is not acting in good faith.
Executor’s Final Say: Legal Representation for Beneficiaries
If you are a beneficiary of an estate and are trying to sue the executor or seek guidance on their authority, you need help. To make an appointment with one of our dedicated attorneys, call Martin Heller Potempa & Sheppard at (615) 800-7096 or contact us online.
If You Need Legal Assistance, Contact MHPS Law Firm Today