THE FIDUCIARY DUTIES OF AN EXECUTOR AND WHAT TO DO IF THESE DUTIES ARE NOT BEING FULFILLED

At Hays Firm, we often represent clients who are heirs or beneficiaries of a “Decedent’s” estate (“Decedent” is another name for a person who has died.). The heirs that we speak with often have concerns about the conduct and activities of an executor of an estate.

An executor is the person who manages the property and the bills of a deceased person. The executor was chosen by the person who died, and is named in a will. The executor owes a fiduciary duty to the Estate’s beneficiaries. Accordingly, an executor is held to the highest standard of fair dealing and diligence when dealing with the Estate.

Unfortunately, executors do not always comply with the fiduciary duty he or she has to the Estate’s beneficiaries and sometimes engages in self-dealing or other conduct, which damages the Estate and enriches only themselves. In other instances,  an executor may be negligent in their duties and simply not act in the manner that is required of them by Illinois law.

An executor’s job begins immediately after the person died. Some of the jobs of an executor include:

• Gathering all of the assets of the Decedent;
• Determining whether any of the assets had any beneficiaries;
• Paying any outstanding bills and debts of the Decedent;
• Selling any assets of the Decedent;
• Distributing all liquidated assets to the Decedent’s heirs and beneficiaries.

Typically, an executor manages an Estate with utmost integrity and ability. Unfortunately, not every Estate management is administered smoothly. An executor may not pay bills or sell property in a timely manner. Taking too much time to sell real property is typically not misconduct.

Misconduct generally arises from acts or activities over which the executor has direct control. Worse, an executor may mismanage the Estate or engage in self-dealing with the Estate. Some examples of executor misconduct include:

•  Failing to timely gather assets belonging to the Estate;
•  Permitting real property to fall into disrepair;
•  Mixing the Executor’s personal funds with the Estate’s funds;
•  Failing to properly manage the Estate property.

An executor may be removed from his or her duties if necessary. Removing an executor is completed through a court proceeding in the probate division. Please review our article on the removal of an executor to learn more about this process.  

At Hays Firm, LLC, we are experienced probate attorneys who have seen an increase of cases involving executor misconduct. Please contact one of our attorneys if you are concerned about executor misconduct in your loved one’s Estate. We look forward to hearing from you.