Santa Clara County Probate Lawyer: How to Remove an Executor from an Estate

An executor is chosen by a testator to carry out the intentions of the will after the testator has died. It’s fairly easy to replace an executor when the testator is still alive—all the testator has to do is simply name a new executor. However, this becomes far more complicated and difficult once the testator has died. While it’s difficult to remove an executor from an estate, it’s not impossible, or even unheard of, to do so.

Why would you want an executor removed from an estate?

An executor is supposed to carry out the intentions of the will and handle the estate in good faith. The executor may not do it perfectly, and the executor is under no obligation to change their performance to the liking of the beneficiaries. So, while some beneficiaries may wish to replace an executor simply because they don’t like them, or they are in conflict, this isn’t good enough. An executor has to demonstrate that they are failing at their duties in order to be removed and that this failure is likely to continue as long as the executor is in place.

What would you have to show to get an executor removed from an estate?

First, the only people that can seek to get an executor removed are interested parties. These are mainly beneficiaries or any creditor that is seeking compensation from the estate. These beneficiaries or creditors will have to show that the executor is incompetent, is careless, or is intentionally mishandling the estate by wasting it, diverting funds, or stealing. For example, an executor who is illiterate, or refuses to do a proper accounting, who distributes property to non-heirs, or takes money from the estate for him- or herself when he or she is not entitled can be (and probably should be) removed from the estate because these behaviors cause harm to the estate.

These parties can also seek to remove an executor if they can show that the executor has a conflict of interest between his or her executor duties and some other fiduciary duties that cannot be reconciled and makes the executor unable to be fair to the estate. For example, if the executor of an estate also happens to be the vice president of a bank that is suing because it believes it actually owns the title to a property in that estate, the executor has a conflict of interest.

How do you get an executor removed from an estate?

Any interested party that wishes to remove an executor would have to petition the probate court to have the executor removed and present a reason. It’s best to have a Santa Clara County probate lawyer advise you first and help you with this petition. You will want to get an accounting, if you can, and any evidence of why the executor should be removed. You can also ask the court to temporarily forbid the executor from doing anything to or with the estate until you get a hearing on the matter.

If you would like to discuss your options with an experienced Santa Clara County probate lawyer, please call our Santa Clara law firm at (650) 422-3313 to schedule a consultation.