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Wills & Estates

What to Do If You Suspect an Executor Isn’t Accounting for All Assets

By November 6, 2024No Comments

I have concerns that the executor is not accounting for all assets; what can I do?

Executors have a duty to act in the best interests of the beneficiaries. Unfortunately, there are instances where an executor may mishandle or even misappropriate estate assets. If you have serious concerns about an executor’s accounting, there are legal options available to you.

Accounts

An executor of an estate is required to prepare a full accounting of all financial transactions involving the estate. Additionally, an executor has a duty to provide information that is reasonably requested by a beneficiary. If you believe that the estate’s accounting is improper, you can apply to the court for a formal passing of accounts. In this process, the court will formally review the accounting of the executor and approve the accounting or make an order it deems necessary. A formal passing of accounts can clarify the handling of the estate assets, and any other financial transaction related to the estate.

However, a formal passing of accounts should only be pursued if there is reasonable concern with the estate accounting. If the court finds that the request for a formal passing of accounts was meritless, it may order costs against the applicant.

Removal of Executor

If the executor’s misconduct is severe, the court could allow a person with an interest in the estate to apply to remove the executor of the estate. The court considers four main factors on an application for removal of an executor:

  1. endangerment of trust property (placing the assets of the estate or trust);
  2. lack of of honesty (deceptive, fraudulent conduct);
  3. lack of the proper capacity to execute the duties (unable to perform their duties due to incapacity); and/or
  4. lack of reasonable fidelity (breaches their duty of loyalty and trust).

However, there must be clear evidence as to why it is necessary to remove the executor because the court does not act lightly to remove the testator’s choice of executor. Generally, an executor cannot be removed on mere suspicion of wrongdoing or a single honest mistake.

Conclusion

If you are a beneficiary of an estate and have concerns about how the estate is being administered, we encourage you to contact our Wills & Estates Team.