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Who is an Executor?

When a person dies, they die with or without a will. The will is the document that controls how their property will be distributed after their death. The will names the person who will administer or deal with the affairs of the deceased person’s estate. That person is called the “executor.” 

Sometimes, a child of a deceased parent becomes the executor because he or she had the responsibility of helping the parent move through their senior years and helped them deal with their personal and financial affairs. This child may have also helped with doctor’s appointments, the grocery store, and other daily life activities. They may be in the best position to know the comings and goings of the estate. That also means they likely have some control of the assets. 

However, an executor can be someone unrelated to the deceased or someone who was never a caretaker of the decedent. 

The executor must be:

  • at least 18 years old;
  • a U.S. resident, and
  • of sound mind — that is, not judged incapacitated by a court.

Illinois also prohibits people who have felony convictions from serving as executor. 755 ILCS 5/6-13.

Also, an Illinois probate court will reject a potential executor found to be a “disabled person.” This means that your executor cannot be someone who:

  • fails to provide for his or her family by gambling, abusing alcohol or drugs, “being idle,” or engaging in “debauchery”
  • has a mental or physical incapacity that prevents him from managing his own affairs, or
  • has been diagnosed with fetal alcohol syndrome.

755 ILCS 5/6-13, 755 ILCS 5/11a-2.

And while an executor who lives out of state can be appointed, it is likely more practical for someone who lives near the court where the estate is being administered to be appointed. They may have to handle matters daily for weeks and/or months. In Illinois, the court may require a nonresident executor to post bond, even if the will expressly states that no bond is required. 755 ILCS 5/6-13

What are the duties of 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.

Generally, the duties of the executor are as follows:

  • Ensure that the will is properly filed; 
  • File a Petition to Probate the will; 
  • Collect the assets of the Estate;
  • Pay the debts of the Estate;
  • Sell certain debts, where necessary in order to distribute the value of those assets to the beneficiaries under the will;
  • File a final tax return for the deceased individual and the Estate;
  • Disperse the remaining assets to the legatees set forth in the will.

No self-dealing

An executor must protect the estate and not take the property for his or her own personal use or otherwise make it unavailable to the estate. The Illinois Probate Act, at section 755 ILCS 5/16-1, provides that you may petition the court to take action if you believe that the executor, or another, has concealed or taken estate property. This estate property could include any of the following:

  • Documents regarding any debt
  • Documents regarding any real estate titles
  • Documents concerning any accounts, such as bank accounts or retirement accounts
  • Personal property, such as jewelry

The court can order the executor to come forward and testify under oath about the issues at hand. It can also order the executor to produce documents regarding the estate assets and their respective value.

What if you think the executor is stealing?

If you have reason to believe that the executor is hiding assets or stealing them so as to avoid having to distribute them later pursuant to the will, a lawsuit may be necessary. Or maybe you think the executor has already spent the decedent’s assets before the decedent dies. Legal action should be taken to make sure the assets aren’t depleted further. 

An executor cannot be removed just because he or she made a bad judgement call that resulted in the Estate losing money. Serious misconduct, like stealing or hiding assets, 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.

Removal

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 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.