Kenneth A. Vercammen Estate Litigation Law Blog on Lawyers.com

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 Will has numerous legal
responsibilities following the death of the person who signed the Will.
Primarily, they have a duty to probate the Will, liquidate assets, pay bills
and taxes, file all necessary court and tax returns, and then distribute the
assets to beneficiaries.  

In
New Jersey, the court and Surrogate do not supervise how an executor or
administrator handles the estate. An Executor occasionally fails to timely
carry out their duties. They may fail to file tax returns, fail to keep
records, misappropriate funds or ignore instructions under the Will. If a
beneficiary is not satisfied with the handling of the estate, they can have an
attorney file a Complaint in the Superior Court to compel accounting, remove
the executor, compel filing of tax returns and seek other relief.

The
New Probate Statute of NJ made a number of substantial changes to the
provisions governing the administration of estates and trusts in New Jersey.

Under
the United States Supreme Court Case, Tulsa Professional Collection
Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope,
Jr., Deceased, 108 S.CT. 1340 (1988) the Personal Representative in every
estate is personally responsible to provide actual notice to all known or
"readily ascertainable" creditors of the decedent. This means that is
the executor’s responsibility to diligently search for any "readily ascertainable"
creditors.

In
lieu of a Formal Accounting the beneficiaries will usually be requested to sign
a Release and Refunding bond. If a beneficiary has evidence of
misappropriation, they should ask the executor for an informal accounting prior
to signing the Release and Refunding bond. 

COMPLAINT FOR
ACCOUNTING & REMOVAL OF EXECUTOR

A
Complaint for Accounting is filed in the Superior Court Probate Part to request
on accounting, removal of the current executor and selection of a new person to
administer and wrap up the estate. See Rule 4:87-1

A
signed certification of one or more beneficiaries is needed. In addition, an
Order to Show Cause is prepared by the attorney. The Order to Show Cause is
submitted to be signed by the Judge directing the executor to file a written
answer to the Complaint, as well as appear before the court at a specific date
and time. The NJ Judiciary website has a model form Order to Show Cause.

As
with a litigated court matter, trials can become expensive. Competent elder
law/probate attorney may charge an hourly rate of $275-$400 per hour, with a
minimum retainer of $3,000 needed. Most attorneys require the retainer to be
paid in full up front.

The plaintiff can
request the following:

(1) That the named
executor be ordered to provide an accounting of the estate to plaintiff.

(2) Defendant Executor
be ordered to provide an accounting for all assets of decedent dated five years
prior to death that defendant may have administrated through a Power of
Attorney.

(3) Payment of
plaintiff's attorney's fees and costs of suit for the action.

(4) Declaring a
constructive trust of the assets of the decedent for the benefit of the
plaintiff and the estate.

(5) That the executor
be removed as the executor/administrator of the estate and that the plaintiff
be named as Administrator C.T.A. or administrator of the estate.

(6) That the executor
be barred from spending any estate funds, be barred from paying any bills, be
barred from taking a commission, be barred from writing checks, be barred from
acting on behalf of the estate, except as specifically authorized by Superior
Court Order or written consent by the plaintiff. The statue on removing the
Executor for cause is NJSA 3B:14-21.

OBJECT TO EXECUTOR'S
COMMISSIONS

 
 Under NJSA 3B:18-1 et seq., Executors, administrators and other
fiduciaries are entitled to receive a commission on both the principal of the
estate, and the income earned by assets.

However,
if you have evidence that the executor has breached their fiduciary duties or
violated a law, the Superior Court accounting complaint can request that the
commissions be reduced or eliminated.

COMPEL THE SALE OF
REAL ESTATE AND OTHER PROPERTY

Occasionally,
a family member is living in a home owned by the decedent. To keep family
harmony, often this family member is permitted to remain in the home
temporarily. However, it may later become clear that the resident has no desire
on moving, and the executor has neither an intention to make them move nor to
sell the house. The remedy a beneficiary has can be to have the attorney
include in the Superior Court complaint a count to

1) remove the executor

2) remove the tenant
and make them pay rent to the estate for the time they used the real property
since death without paying rent

3) compel the
appraisal of the home and, thereafter, the sale of the property

4) make the executor
reimburse the estate for the neglect or waste of assets.

Removal for cause¿ of Executor  

NJSA
3B:14-21    The court may
remove a fiduciary from office when:¿¿   

a.  After due notice
of an order or judgment of the court so directing, he neglects or refuses,
within the time fixed by the court, to file an inventory, render an account or
give security or additional security;¿¿   

b.  After due notice
of any other order or judgment of the court made under its proper
authority, he neglects or refuses to perform or obey the order or judgment
within the time fixed by the court;  or¿¿   

c.  He has
embezzled, wasted or misapplied any part of the estate committed to his
custody, or has abused the trust and confidence reposed in him; 
or¿¿   

       d.  He has removed from the
state or does not reside therein and neglects or refuses to proceed with
the administration of the estate and perform the duties and trust
devolving upon him; or¿¿          

       e.  He is of unsound mind
or mentally incapacitated for the transaction of
business; or¿¿   

f.  One of two or
more fiduciaries has neglected or refused to perform his duties or to join with
the other fiduciary or fiduciaries in the administration of the estate
committed to their care whereby the proper administration and settlement
of the estate is or may be hindered or prevented.

In addition, "a court
may invoke its equity powers to remove [an executor]." In re Duke, 305 N.J. Super.
408, 438 (Ch. Div. 1995) (citing In re Koretzky, 8 N.J. 506,
530 (1951)). However, a judge should be particularly reluctant to remove a
fiduciary chosen by the decedent, Connelly v. Weisfeld, 142 N.J. Eq. 406,
411 (E. & A. 1948), and the foremost concern when such an act is
contemplated should be whether the executor's continued service would be
detrimental to the estate. Wolosoff v. CSI Liquidating Trust, 205 N.J. Super.
349, 360 (App. Div. 1985)

The critical question is
… "whether the circumstances are such that the continuance . . . in office
would be detrimental to the [estate] and require the court to grant
relief." Wolosoff, supra, 205 N.J. Super. at 360.
Thus, mere friction between an executor and beneficiaries is not a ground for
removal unless the relationship is likely to "interfere materially with
the administration" of the estate. Ibid. Estate litigation is often
acrimonious, but the removal of an executor appointed by the decedent is
generally to be avoided. Connelly, supra, 142 N.J. Eq. at
411.

"Generally, in order
for friction or hostility between the beneficiary and trustee to form the basis
for removal, there must be a demonstration that the relationship will interfere
materially with the administration of the trust or is likely to do so." Wolosoff,
supra, 205 N.J. Super. at 360-61. There also must be proof that
the friction or hostility arose out of the trustee's behavior. Ibid.; Starr
v. Wiley, 89 N.J. Eq. 79, 90 (Ch. 1918)

CONCLUSION

New
Jersey is considered a “probate friendly” state since the executors are not
required to obtain court approvals for most actions. However, if the Executor
is not complying with state law, in NJ the only recourse a beneficiary has is
to file a complaint and Order to Show Cause.

      Planning
can only be done while someone is competent and alive. Make sure your assets
can be passed directly to your loved ones.

      Kenneth
A.  Vercammen is a Middlesex County
trial attorney who has published 125 articles in national and New Jersey
publications on litigation topics. He has been selected to lecture to trial
lawyers by the American Bar Association, New Jersey State Bar Association and
Middlesex County Bar Association.

More
information at  www.njlaws.com

Call Kenneth Vercammen’s law office to schedule a
confidential appointment

732-572-0500

  KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053
Woodbridge Ave.

Edison, NJ
08817

(Phone)
732-572-0500

 (Fax)    732-572-0030