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Removing an Executor

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A Fairfax, VA Estate Planning Lawyer Discusses The Circumstances Under Which An Executor May Be Removed

As Virginia estate planning and litigation attorneys, we always advise our clients to be extraordinarily selective when choosing the executors of their estates. That's because the executor holds a tremendous amount of power in making certain that the testator's final wishes are respected. But what happens when the executor that a testator chose is either irresponsible or incompetent? The testator is no longer around to set things right, so who can?

Grounds For Removing a Testator

If other interested parties find that the executor is not acting in accordance with his or her position, there are things that they can do to have him or her removed or replaced:

Removal Clauses – Many wills contain a clause that outlines a procedure for the removal of the executor. For example, if there are multiple beneficiaries, the attorney who drafts the will can include language to allow for the removal of the executor via a majority or unanimous vote.

Petition the Courts – If there is no clause for the removal of the executor, an interested party may hire an attorney and petition the local Virginia court. All interested parties (i.e. beneficiaries and executor) must be noticed of this action. Lawsuits of this nature are not always successful. Plaintiffs must show that the executor is failing in his or her responsibility—and not that they disapprove of a decision. Some of the grounds that the Virginia courts may recognize are:

  • Conflict of Interest – The executor is unable to objectively execute the will.
  • Incapacitation – The executor is physically or mentally incapable of executing the will.
  • Misconduct – The executor has committed fraud, theft, or other crimes related to the estate.
  • Hostile Conduct – The executor is hostile to the beneficiaries to the point where it interferes with the execution of the will.

Conversely, the VA courts are probably not as likely to remove an executor for the following reasons:

  • Unpopular Decisions – Not all interested parties are necessarily going to be happy about what is written in a will. As long as the executor is making a good faith effort to interpret the will properly, he or she is not likely to be removed.
  • Personal Conflicts – Not getting along with the executor is not grounds for his or her removal—except in the case where the executor is being overtly hostile.

If you are planning your estate, one of the most reliable ways to ensure that your executor is not removed after your death, is to make certain that the attorney who drafts the testament uses clear and understandable language. If you have any concerns about the way something reads, or believe that it may be misinterpreted, have your estate planning lawyer change it. If you have questions about removing a trustee, please contact one of the estate litigation attorneys at Hale Ball

 

 

 

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