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. 2-3//4 the #ersonal
5epresentati$e in e$ery estate is personally responsi"le to pro$ide actual
notice to all )nown or 6readily ascertaina"le6 creditors of the decedent.
(his means that is the executor7s responsi"ility to dili!ently search for
any 6readily ascertaina"le6 creditors.
%n lieu of a 8ormal 'ccountin! the "eneficiaries will usually "e
requested to si!n a 5elease and 5efundin! "ond. %f a "eneficiary has
e$idence of misappropriation, they should as) the executor for an
informal accountin! prior to si!nin! the 5elease and 5efundin! "ond.
*9:#L'%N( 895 '**9UN(%N; < 5E:9V'L 98 E=E*U(95
' *omplaint for 'ccountin! is filed in the &uperior *ourt #ro"ate
#art to request on accountin!, remo$al of the current executor and
selection of a new person to administer and wrap up the estate. &ee 5ule
-
1>/?@-
' si!ned certification of one or more "eneficiaries is needed. %n
addition, an 9rder to &how *ause is prepared "y the attorney. (he 9rder
to &how *ause is su"mitted to "e si!ned "y the Jud!e directin! the
executor to file a written answer to the *omplaint, as well as appear
"efore the court at a specific date and time. (he NJ Judiciary we"site has
a model form 9rder to &how *ause.
's with a liti!ated court matter, trials can "ecome expensi$e.
*ompetent elder lawApro"ate attorney may char!e an hourly rate of
BC?D@B1.. per hour, with a minimum retainer of B0,... needed. :ost
attorneys require the retainer to "e paid in full up front.
(he plaintiff can request the followin!>
2-4 (hat the named executor "e ordered to pro$ide an accountin! of the
estate to plaintiff.
2C4 ,efendant Executor "e ordered to pro$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.
204 #ayment of plaintiffEs attorneyEs fees and costs of suit for the action.
214 ,eclarin! a constructi$e trust of the assets of the decedent for the
"enefit of the plaintiff and the estate.
2D4 (hat the executor "e remo$ed as the executorAadministrator of the
estate and that the plaintiff "e named as 'dministrator *.(.'. or
administrator of the estate.
2F4 (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 authoriGed "y &uperior *ourt 9rder or written
consent "y the plaintiff. (he statue on remo$in! the Executor for cause is
NJ&' 0B>-1@C-.
9BJE*( (9 E=E*U(95E& *9::%&&%9N&
C
Under NJ&' 0B>-/@- et seq., Executors, administrators and other
fiduciaries are entitled to recei$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 $iolated a law, the &uperior *ourt accountin!
complaint can request that the commissions "e reduced or eliminated.
*9:#EL (+E &'LE 98 5E'L E&('(E 'N, 9(+E5 #59#E5(H
9ccasionally, a family mem"er is li$in! in a home owned "y the
decedent. (o )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
-4 remo$e the executor
C4 remo$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
04 compel the appraisal of the home and, thereafter, the sale of the
property
14 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$e a fiduciary from office
when>
a. 'fter due notice of an order or Iud!ment of the court so
directin!, he ne!lects or refuses, within the time fixed "y the court, to file
an in$entory, render an account or !i$e security or additional securityJ
". 'fter due notice of any other order or Iud!ment of the court
made under its proper authority, he ne!lects or refuses to perform or
0
o"ey the order or Iud!ment within the time fixed "y the courtJ or
c. +e has em"eGGled, wasted or misapplied any part of the estate
committed to his custody, or has a"used the trust and confidence
reposed in himJ or
d. +e has remo$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 himJ or
e. +e is of unsound mind or mentally incapacitated for the
transaction of "usinessJ or
f. 9ne of two or more fiduciaries has ne!lected or refused to
perform his duties or to Ioin 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$ented.
%n addition, 6a court may in$o)e its equity powers to remo$e Kan
executorL.6 %n re ,u)e, 0.D N.J. &uper. 1./, 10/ 2*h. ,i$. -33D4 2citin! %n
re KoretG)y, / N.J. D.F, D0. 2-3D-44. +owe$er, a Iud!e should "e
particularly reluctant to remo$e a fiduciary chosen "y the decedent,
*onnelly $. eisfeld, -1C N.J. Eq. 1.F, 1-- 2E. < '. -31/4, and the
foremost concern when such an act is contemplated should "e whether
the executorEs continued ser$ice would "e detrimental to the estate.
olosoff $. *&% Liquidatin! (rust, C.D N.J. &uper. 013, 0F. 2'pp. ,i$.
-3/D4
(he critical question is M 6whether the circumstances are such that
the continuance . . . in office would "e detrimental to the KestateL and
require the court to !rant relief.6 olosoff, supra, C.D N.J. &uper. at 0F..
(hus, mere friction "etween an executor and "eneficiaries is not a
1
!round for remo$al unless the relationship is li)ely to 6interfere materially
with the administration6 of the estate. %"id. Estate liti!ation is often
acrimonious, "ut the remo$al of an executor appointed "y the decedent
is !enerally to "e a$oided. *onnelly, supra, -1C N.J. Eq. at 1--.
6;enerally, in order for friction or hostility "etween the "eneficiary
and trustee to form the "asis for remo$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.6 olosoff, supra, C.D N.J. &uper. at 0F.@F-.
(here also must "e proof that the friction or hostility arose out of the
trusteeEs "eha$ior. %"id.J &tarr $. iley, /3 N.J. Eq. ?3, 3. 2*h. -3-/4
*9N*LU&%9N
New Jersey is considered a Npro"ate friendlyO state since the executors
are not required to o"tain court appro$als for most actions. +owe$er, if
the Executor is not complyin! with state law, in NJ the only recourse a
"eneficiary has is to file a complaint and 9rder to &how *ause.
#lannin! can only "e done while someone is competent and ali$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 -CD 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.
*all our office to schedule a confidential appointment
?0C@D?C@.D..
D
KENNE! "ER#A$$EN % ASS&#'AES( )#
A&RNE* A +A,
C.D0 ood"rid!e '$e.
Edison, NJ .//-?
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28ax4 ?0C@D?C@..0.
we"site> www.nIlaws.com
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