What Can You Do When The Estate Representative Doesn’t Do His/Her Job? How To Remove an Executor

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Litigation Attorney

To remove an individual or corporate agent from the position of executor, you will need to file a verified complaint and an order to show cause in Superior Court alleging that the estate representative is “abusing the trust and confidence required by law of a fiduciary” by failing to finalize the affairs of the estate. NJ.S.A. §3B:14-21. In the relief sought, you can request removal of the executor and substitute your appointment as a neutral administrator. The issue though is whether you have standing to remove the fiduciary as the executor of the estate. Sometimes, case law will not side with you on this issue. In Carton v. Borden, 8 N.J. 352 (1951), the plaintiff was a law firm specifically appointed in the decedent’s will to assist the executor in managing the estate’s affairs. The plaintiff believed that the executor was converting and mismanaging funds in the estate, and sued to have the executor discharged. Despite being named as the alternate executor to manage the estate, both the Chancery Division and the Supreme Court concluded that neither the lawyer nor the firm were “interested parties” with legal standing to bring a lawsuit. The Supreme Court went on to state that the firm’s “obligation to the court would be satisfied by bringing the matter to the attention of the court in which the matter was pending so that the court might on its own motion order an accounting and, if necessary, impose immediate restraint and relief against the sitting fiduciary.”

The issue often is not that the Executor is stealing from the estate, but that he/she needs to be pushed along to finalize the affairs of the Estate. Maybe a letter to the court would help, but it may not do much. Ultimately, though, the children will have to come together and figure out whether the financial prejudice they are feeling is worth them suing directly. I believe the result will justify the effort, it may be worth it.

To discuss your NJ Estate Probate Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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