Removing an Executor of an Estate

By Kenneth Vercammen Esq. of Edison, NJ

Under New Jersey Law, the person selected as an executor of a ill has
numerous le!al responsi"ilities followin! the death of the person who si!ned the
ill. #rimarily, they ha$e a duty to pro"ate the ill, liquidate assets, pay "ills and
taxes, file all necessary court and tax returns, and then distri"ute the assets to
"eneficiaries.
%n New Jersey, the court and &urro!ate do not super$ise how an executor or
administrator handles the estate. 'n Executor occasionally fails to timely carry out
their duties. (hey may fail to file tax returns, fail to )eep records, misappropriate
funds or i!nore instructions under the ill. %f a "eneficiary is not satisfied with the
handlin! of the estate, they can ha$e an attorney file a *omplaint in the &uperior
*ourt to compel accountin!, remo$e the executor, compel filin! of tax returns and
see) other relief.
(he New #ro"ate &tatute of NJ made a num"er of su"stantial chan!es to the
pro$isions !o$ernin! the administration of estates and trusts in New Jersey.
Under the United &tates &upreme *ourt *ase, (ulsa #rofessional *ollection
&er$ices, %nc., $. Joanne #ope, Executrix of the Estate of +. E$erett #ope, Jr.,
,eceased, -./ &.*(. -01. the #ersonal 2epresentati$e in e$ery estate is
personally responsi"le to pro$ide actual notice to all )nown or 3readily ascertaina"le3
creditors of the decedent. (his means that is the executor4s responsi"ility to
dili!ently search for any 3readily ascertaina"le3 creditors.
's with a liti!ated court matter, trials can "ecome expensi$e. *ompetent
elder law5pro"ate attorney may char!e an hourly rate of 60..7618. per hour, with a
retainer of 61... needed. 'ttorneys will require the full retainer to "e paid in full up
front. e char!e a consult fee of 69.. to discuss the case.
%n lieu of a :ormal 'ccountin! the "eneficiaries will usually "e requested to
si!n a 2elease and 2efundin! "ond. %f a "eneficiary has e$idence of
misappropriation, they should as) the executor for an informal accountin! prior to
si!nin! the 2elease and 2efundin! "ond.
*;<#L'%N( :;2 '**;UN(%N= > 2E<;V'L ;: E?E*U(;2
' *omplaint for 'ccountin! is filed in the &uperior *ourt #ro"ate #art to
request on accountin!, remo$al of the current executor and selection of a new
person to administer and wrap up the estate. &ee 2ule 1@/A7-
' si!ned certification of one or more "eneficiaries is needed. %n addition, an
-
;rder to &how *ause is prepared "y the attorney. (he ;rder to &how *ause is
su"mitted to "e si!ned "y the Jud!e directin! the executor to file a written answer to
the *omplaint, as well as appear "efore the court at a specific date and time. (he NJ
Judiciary we"site has a model form ;rder to &how *ause.
's with a liti!ated court matter, trials can "ecome expensi$e. *ompetent
elder law5pro"ate attorney may char!e an hourly rate of 69A8761.. per hour, with a
minimum retainer of 60,... needed. <ost attorneys require the retainer to "e paid in
full up front.
(he plaintiff can request the followin!@
B-C (hat the named executor "e ordered to pro$ide an accountin! of the estate to
plaintiff.
B9C ,efendant Executor "e ordered to pro$ide an accountin! for all assets of
decedent dated fi$e years prior to death that defendant may ha$e administrated
throu!h a #ower of 'ttorney.
B0C #ayment of plaintiffDs attorneyDs fees and costs of suit for the action.
B1C ,eclarin! a constructi$e trust of the assets of the decedent for the "enefit of the
plaintiff and the estate.
B8C (hat the executor "e remo$ed as the executor5administrator of the estate and
that the plaintiff "e named as 'dministrator *.(.'. or administrator of the estate.
BEC (hat the executor "e "arred from spendin! any estate funds, "e "arred from
payin! any "ills, "e "arred from ta)in! a commission, "e "arred from writin! chec)s,
"e "arred from actin! on "ehalf of the estate, except as specifically authoriFed "y
&uperior *ourt ;rder or written consent "y the plaintiff. (he statue on remo$in! the
Executor for cause is NJ&' 0B@-179-.
;BJE*( (; E?E*U(;2D& *;<<%&&%;N&
Under NJ&' 0B@-/7- et seq., Executors, administrators and other
fiduciaries are entitled to recei$e a commission on "oth the principal of the estate,
and the income earned "y assets.
+owe$er, if you ha$e e$idence that the executor has "reached their fiduciary
duties or $iolated a law, the &uperior *ourt accountin! complaint can request that
the commissions "e reduced or eliminated.
*;<#EL (+E &'LE ;: 2E'L E&('(E 'N, ;(+E2 #2;#E2(G
;ccasionally, a family mem"er is li$in! in a home owned "y the decedent. (o
9
)eep family harmony, often this family mem"er is permitted to remain in the home
temporarily. +owe$er, it may later "ecome clear that the resident has no desire on
mo$in!, and the executor has neither an intention to ma)e them mo$e nor to sell the
house. (he remedy a "eneficiary has can "e to ha$e the attorney include in the
&uperior *ourt complaint a count to
-C remo$e the executor
9C remo$e the tenant and ma)e them pay rent to the estate for the time they used
the real property since death without payin! rent
0C compel the appraisal of the home and, thereafter, the sale of the property
1C ma)e the executor reim"urse the estate for the ne!lect or waste of assets.
Removal for cause of Executor
NJSA 3B:14-21 (he court may remo$e a fiduciary from office when@
a. 'fter due notice of an order or Hud!ment of the court so directin!, he
ne!lects or refuses, within the time fixed "y the court, to file an in$entory, render an
account or !i$e security or additional securityI
". 'fter due notice of any other order or Hud!ment of the court made under its
proper authority, he ne!lects or refuses to perform or o"ey the order or Hud!ment
within the time fixed "y the courtI or
c. +e has em"eFFled, wasted or misapplied any part of the estate
committed to his custody, or has a"used the trust and confidence reposed in himI
or
d. +e has remo$ed from the state or does not reside therein and ne!lects
or refuses to proceed with the administration of the estate and perform the
duties and trust de$ol$in! upon himI or
e. +e is of unsound mind or mentally incapacitated for the transaction of
"usinessI or
f. ;ne of two or more fiduciaries has ne!lected or refused to perform his
duties or to Hoin with the other fiduciary or fiduciaries in the administration of the
estate committed to their care where"y the proper administration and settlement of
the estate is or may "e hindered or pre$ented.
%n addition, 3a court may in$o)e its equity powers to remo$e Jan executorK.3 %n
0
re ,u)e, 0.8 N.J. &uper. 1./, 10/ B*h. ,i$. -LL8C Bcitin! %n re KoretF)y, / N.J. 8.E,
80. B-L8-CC. +owe$er, a Hud!e should "e particularly reluctant to remo$e a fiduciary
chosen "y the decedent, *onnelly $. eisfeld, -19 N.J. Eq. 1.E, 1-- BE. > '. -L1/C,
and the foremost concern when such an act is contemplated should "e whether the
executorDs continued ser$ice would "e detrimental to the estate. olosoff $. *&%
Liquidatin! (rust, 9.8 N.J. &uper. 01L, 0E. B'pp. ,i$. -L/8C
(he critical question is M 3whether the circumstances are such that the
continuance . . . in office would "e detrimental to the JestateK and require the court to
!rant relief.3 olosoff, supra, 9.8 N.J. &uper. at 0E.. (hus, mere friction "etween an
executor and "eneficiaries is not a !round for remo$al unless the relationship is
li)ely to 3interfere materially with the administration3 of the estate. %"id. Estate
liti!ation is often acrimonious, "ut the remo$al of an executor appointed "y the
decedent is !enerally to "e a$oided. *onnelly, supra, -19 N.J. Eq. at 1--.
3=enerally, in order for friction or hostility "etween the "eneficiary and trustee
to form the "asis for remo$al, there must "e a demonstration that the relationship will
interfere materially with the administration of the trust or is li)ely to do so.3 olosoff,
supra, 9.8 N.J. &uper. at 0E.7E-. (here also must "e proof that the friction or
hostility arose out of the trusteeDs "eha$ior. %"id.I &tarr $. iley, /L N.J. Eq. AL, L.
B*h. -L-/C
,uty of Executor in #ro"ate > Estate 'dministration
-. *onduct a thorou!h search of the decedentDs personal papers and effects for
any e$idence which mi!ht point you in the direction of a potential creditorI
9. *arefully examine the decedentDs chec)"oo) and chec) re!ister for recurrin!
payments, as these may indicate an existin! de"tI
0. *ontact the issuer of each credit card that the decedent had in his5her
possession at the time of his5 her deathI
1. *ontact all parties who pro$ided medical care, treatment, or assistance to the
decedent prior to his5her deathI
Gour attorney will not "e a"le to file the NJ inheritance tax return until it is
clear as to the amounts of the medical "ills and other expenses. <edical
expenses can "e deducted in the inheritance tax.
Under United &tates &upreme *ourt *ase, (ulsa #rofessional *ollection
&er$ices, %nc., $. Joanne #ope, Executrix of the Estate of +. E$erett #ope, Jr.,
,eceased, the #ersonal 2epresentati$e in e$ery estate is personally responsi"le
to pro$ide actual notice to all )nown or 3readily ascertaina"le3 creditors of the
decedent. (his means that is your responsi"ility to dili!ently search for any
3readily ascertaina"le3 creditors.
1
;ther duties5 Executor to ,o
Brin! ill to &urro!ate
'pply to :ederal (ax %, N
&et up Estate 'ccount at "an) Bpay all "ills from estate accountC
#ay Bills
Notice of #ro"ate to Beneficiaries B'ttorney can handleC
%f charity, notice to 'tty =eneral B'ttorney can handleC
:ile notice of #ro"ate with &urro!ate B'ttorney can handleC
:ile first :ederal and &tate %ncome (ax 2eturn J*#'7 ex <arc KaneK
#repare %nheritance (ax 2eturn and o"tain (ax ai$ers B'ttorney can handleC
:ile wai$ers within / months upon receipt B'ttorney can handleC
#repare %nformal 'ccountin!
#repare 2elease and 2efundin! Bond B'ttorney can handleC
;"tain *hild &upport Jud!ment clearance B'ttorney will handleC
LetDs re$iew the maHor duties in$ol$ed7
%n =eneral. (he executorDs Ho" is to B-C administer the estate77i.e., collect and
mana!e assets, file tax returns and pay taxes and de"ts77and B9C distri"ute any
assets or ma)e any distri"utions of "equests, whether personal or charita"le in
nature, as the deceased directed Bunder the pro$isions of the illC. LetDs ta)e a
loo) at some of the specific steps in$ol$ed and what these responsi"ilities can
mean. *hronolo!ical order of the $arious duties may $ary.
#ro"ate. (he executor must 3pro"ate3 the ill. #ro"ate is a process "y which a
ill is admitted. (his means that the ill is !i$en le!al effect "y the court. (he
courtDs decision that the ill was $alidly executed under state law !i$es the
executor the power to perform his or her duties under the pro$isions of the ill.
'n employer identification num"er B3E%N3C should "e o"tained for the
estateI this num"er must "e included on all returns and other tax documents
ha$in! to do with the estate. (he executor should also file a written notice with
the %2& that he5she is ser$in! as the fiduciary of the estate. (his !i$es the
executor the authority to deal with the %2& on the estateDs "ehalf.
#ay the ,e"ts. (he claims of the estateDs creditors must "e paid.
&ometimes a claim must "e liti!ated to determine if it is $alid. 'ny estate
administration expenses, such as attorneysD, accountantsD and appraisersD fees,
must also "e paid.
<ana!e the Estate. (he executor ta)es le!al title to the assets in the
pro"ate estate. (he pro"ate court will sometimes require a pu"lic accountin! of
the estate assets. (he assets of the estate must "e found and may ha$e to "e
collected. 's part of the asset mana!ement function, the executor may ha$e to
liquidate or run a "usiness or mana!e a securities portfolio. (o sell mar)eta"le
securities or real estate, the executor will ha$e to o"tain stoc) power, tax
wai$ers, file affida$its, and so on.
(a)e *are of (ax <atters. (he executor is le!ally responsi"le for filin!
necessary income and estate7tax returns Bfederal and stateC and for payin! all
death taxes Bi.e., estate and inheritanceC. (he executor can, in some cases "e
8
held personally lia"le for unpaid taxes of the estate. (ax returns that will need to
"e filed can include the estateDs income tax return B"oth federal and stateC, the
federal estate7tax return, the state death tax return Bestate and5or inheritanceC,
and the deceasedDs final income tax return Bfederal and stateC. (axes usually
must "e paid "efore other de"ts. %n many instances, federal estate7tax returns
are not needed as the siFe of the estate will "e under the amount for which a
federal estate7tax return is required.
;ften it is necessary to hire an appraiser to $alue certain assets of the
estate, such as a "usiness, pension, or real estate, since estate taxes are "ased
on the 3fair mar)et3 $alue of the assets. 'fter the filin! of the returns and
payment of taxes, the %nternal 2e$enue &er$ice will !enerally send some type of
estate closin! letter acceptin! the return. ;ccasionally, the return will "e audited.
,istri"ute the 'ssets. 'fter all de"ts and expenses ha$e "een paid, the
executor will distri"ute the assets. :requently, "eneficiaries can recei$e partial
distri"utions of their inheritance without ha$in! to wait for the closin! of the
estate.
Under increasin!ly complex laws and rulin!s, particularly with respect to
taxes, in lar!er estates an executor can "e in char!e for two or three years
"efore the estate administration is completed. %f the Ho" is to "e done without
unnecessary cost and without causin! undue hardship and delay for the
"eneficiaries of the estate, the executor should ha$e an understandin! of the
many pro"lems in$ol$ed and an or!aniFation created for settlin! estates. %n
short, an executor should ha$e experience
't some point in time, you may "e as)ed to ser$e as the executor of the
estate of a relati$e or friend, or you may as) someone to ser$e as your executor.
'n executorDs Ho" comes with many le!al o"li!ations. Under certain
circumstances, an executor can e$en "e held personally lia"le for unpaid estate
taxes. LetDs re$iew the maHor duties in$ol$ed, which weD$e set out "elow.
%n =eneral. (he executorDs Ho" is to B-C administer the estate77i.e., collect
and mana!e assets, file tax returns and pay taxes and de"ts77and B9C distri"ute
any assets or ma)e any distri"utions of "equests, whether personal or charita"le
in nature, as the deceased directed Bunder the pro$isions of the illC. LetDs ta)e a
loo) at some of the specific steps in$ol$ed and what these responsi"ilities can
mean. *hronolo!ical order of the $arious duties may $ary.
#ro"ate. (he executor must 3pro"ate3 the ill. #ro"ate is a process "y
which a ill is admitted. (his means that the ill is !i$en le!al effect "y the
court. (he courtDs decision that the ill was $alidly executed under state law
!i$es the executor the power to perform his or her duties under the pro$isions of
the ill.
'n employer identification num"er B3E%N3C should "e o"tained for the
estateI this num"er must "e included on all returns and other tax documents
ha$in! to do with the estate. (he executor should also file a written notice with
the %2& that he5she is ser$in! as the fiduciary of the estate. (his !i$es the
executor the authority to deal with the %2& on the estateDs "ehalf.
#ay the ,e"ts. (he claims of the estateDs creditors must "e paid.
E
&ometimes a claim must "e liti!ated to determine if it is $alid. 'ny estate
administration expenses, such as attorneysD, accountantsD and appraisersD fees,
must also "e paid.
<ana!e the Estate. (he executor ta)es le!al title to the assets in the
pro"ate estate. (he pro"ate court will sometimes require a pu"lic accountin! of
the estateDs assets. (he assets of the estate must "e found and may ha$e to "e
collected. 's part of the asset mana!ement function, the executor may ha$e to
liquidate or run a "usiness or mana!e a securities portfolio. (o sell mar)eta"le
securities or real estate, the executor will ha$e to o"tain stoc) power, tax
wai$ers, file affida$its, and so on.
(a)e *are of (ax <atters. (he executor is le!ally responsi"le for filin!
necessary income and estate7tax returns Bfederal and stateC and for payin! all
death taxes Bi.e., estate and inheritanceC. (he executor can, in some cases "e
held personally lia"le for unpaid taxes of the estate. (ax returns that will need to
"e filed can include the estateDs income tax return B"oth federal and stateC, the
federal estate7tax return, the state death tax return Bestate and5or inheritanceC,
and the deceasedDs final income tax return Bfederal and stateC. (axes usually
must "e paid "efore other de"ts. %n many instances, federal estate7tax returns
are not needed as the siFe of the estate will "e under the amount for which a
federal estate7tax return is required.
;ften it is necessary to hire an appraiser to $alue certain assets of the
estate, such as a "usiness, pension, or real estate, since estate taxes are "ased
on the 3fair mar)et3 $alue of the assets. 'fter the filin! of the returns and
payment of taxes, the %nternal 2e$enue &er$ice will !enerally send some type of
estate closin! letter acceptin! the return. ;ccasionally, the return will "e audited.
,istri"ute the 'ssets. 'fter all de"ts and expenses ha$e "een paid, the
distri"ute the assets with extra attention and meticulous "oo))eepin! "y the
executor. :requently, "eneficiaries can recei$e partial distri"utions of their
inheritance without ha$in! to wait for the closin! of the estate.
Under increasin!ly complex laws and rulin!s, particularly with respect to
taxes, in lar!er estates an executor can "e in char!e for two or three years
"efore the estate administration is completed. %f the Ho" is to "e done without
unnecessary cost and without causin! undue hardship and delay for the
"eneficiaries of the estate, the executor should ha$e an understandin! of the
many pro"lems in$ol$ed and an or!aniFation created for settlin! estates.
*;N*LU&%;N
New Jersey is considered a Opro"ate friendlyP state since the executors are
not required to o"tain court appro$als for most actions. +owe$er, if the Executor is
not complyin! with state law, in NJ the only recourse a "eneficiary has is to file a
A
complaint and ;rder to &how *ause.
#lannin! can only "e done while someone is competent and ali$e. <a)e sure
your assets can "e passed directly to your lo$ed ones.
Kenneth '. Vercammen is a <iddlesex *ounty trial attorney who has
pu"lished -98 articles in national and New Jersey pu"lications on liti!ation topics.
+e has "een selected to lecture to trial lawyers "y the 'merican Bar 'ssociation,
New Jersey &tate Bar 'ssociation and <iddlesex *ounty Bar 'ssociation.
<ore information at www.nHlaws.com
*all Kenneth Vercammen4s law office to schedule a confidential appointment
A0978A97.8..
KENNE! "ER#A$$EN % ASS&#'AES( )#
A&RNE* A +A,
9.80 ood"rid!e '$e.
Edison, NJ .//-A
B#honeC A0978A97.8..
B:axC A0978A97..0.
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