Serious misconduct is required in order to remove an Executor

When a person dies with a will the will is the document which controls how their property is distributed after their death. The will also names the person who will administer the affairs of the deceased person’s Estate. That person is called the “Executor.”

The Executor of a decedent’s Estate 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, the Executor does 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 the Executor may be negligent in their duties and simply not act in the manner that is required of them by Illinois law.

What are the duties of the Executor?

Generally speaking, the duties of the Executor under Illinois are as follows:

• Collecting the assets of the Estate;
• Paying the debts of the Estate;
• Selling certain debts, where necessary in order to distribute the value of those assets to the beneficiaries under the will;
• Filing a final tax return for the deceased individual and the Estate;
• Dispersing the remaining assets to the legatees set forth in the will.

Can an Executor be removed from an Estate?

An Executor cannot be removed simply because he or she made a bad judgment call that resulted in the Estate losing money. Serious misconduct is required in order to remove an Executor. If an Executor fails to uphold their obligations to the Estate and its beneficiaries, Illinois law allows a beneficiary, or someone else with a financial interest in the Estate, to file a petition to remove that Executor.

Illinois statute specifies that the removal of an executor is justified in the following instances:

(a) On petition of any interested person or on the court’s own motion, the court may remove a representative if:

1. the representative is acting under letters secured by false pretenses;
2. the representative is adjudged a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code (1) or is adjudged a person with a disability;
3. the representative is convicted of a felony;
4. the representative wastes or mismanages the Estate;
5. the representative conducts himself or herself in such a manner as to endanger any co-representative or the surety on the representative’s bond;
6. the representative fails to give sufficient bond or security, counter security or a new bond, after being ordered by the court to do so;
7. the representative fails to file an inventory or accounting after being ordered by the court to do so;
8. the representative conceals himself or herself so that process cannot be served upon the representative or notice cannot be given to the representative;
9. the representative becomes incapable of or unsuitable for the discharge of the representative’s duties; or
10. there is other good cause. 755 ILCS 5/23-2.

Removal Process

In order for an Executor to be removed, the party seeking removal must file a Petition which demands that the Executor show the reasons why he or she should not be removed. The Petition must be verified and evidence must be proven to support all claims made in the pleading seeking removal. Ultimately, the matter will be subject to an evidentiary hearing before the Court and the judge will decide whether the Executor should be removed.

Conclusion

If you have a financial interest in an Estate and you believe that the Executor is mishandling the affairs of the Estate, you need to consult with a qualified estate litigation attorney to discuss your options. The experienced Chicago Estate litigation lawyers at Hays Firm LLC have helped many individuals through the process of challenging a will in order to ensure that their loved one’s true wishes were carried out. Please feel free to contact us anytime to discuss how we can help.