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.
As with a litigated court matter, trials can become expensive. Competent
elder law/probate attorney may charge an hourly rate of $300-$450 per hour,
with a retainer of $4000 needed. Attorneys will require the full retainer to be
paid in full up front. We charge a consult fee of $200 to discuss the case.
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)
Duty of Executor in Probate &
Estate Administration
1. Conduct a thorough search of
the decedent's personal papers and effects for any evidence which might point
you in the direction of a potential creditor;
2. Carefully examine the
decedent's checkbook and check register for recurring payments, as these may
indicate an existing debt;
3. Contact the issuer of each
credit card that the decedent had in his/her possession at the time of his/ her
death;
4. Contact all parties who
provided medical care, treatment, or assistance to the decedent prior to
his/her death;
Your
attorney will not be able to file the NJ inheritance tax return until it is
clear as to the amounts of the medical bills and other expenses. Medical
expenses can be deducted in the inheritance tax.
Under
United States Supreme Court Case, Tulsa Professional Collection Services, Inc.,
v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, 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 your responsibility to diligently search for
any "readily ascertainable" creditors.
Other duties/ Executor to Do
Bring Will to Surrogate
Apply to Federal Tax ID #
Set up Estate Account at bank
(pay all bills from estate account)
Pay Bills
Notice of Probate to
Beneficiaries (Attorney can handle)
If charity, notice to Atty
General (Attorney can handle)
File notice of Probate with
Surrogate (Attorney can handle)
File first Federal and State
Income Tax Return [CPA- ex Marc Kane]
Prepare Inheritance Tax Return
and obtain Tax Waivers (Attorney can handle)
File waivers within 8 months upon
receipt (Attorney can handle)
Prepare Informal Accounting
Prepare Release and Refunding
Bond (Attorney can handle)
Obtain Child Support Judgment
clearance (Attorney will handle)
Let's
review the major duties involved-
In General. The executor's job is
to (1) administer the estate--i.e., collect and manage assets, file tax returns
and pay taxes and debts--and (2) distribute any assets or make any
distributions of bequests, whether personal or charitable in nature, as the
deceased directed (under the provisions of the Will). Let's take a look at some
of the specific steps involved and what these responsibilities can mean.
Chronological order of the various duties may vary.
Probate. The executor must
"probate" the Will. Probate is a process by which a Will is admitted.
This means that the Will is given legal effect by the court. The court's
decision that the Will was validly executed under state law gives the executor
the power to perform his or her duties under the provisions of the Will.
An
employer identification number ("EIN") should be obtained for the
estate; this number must be included on all returns and other tax documents
having to do with the estate. The executor should also file a written notice
with the IRS that he/she is serving as the fiduciary of the estate. This gives
the executor the authority to deal with the IRS on the estate's behalf.
Pay
the Debts. The claims of the estate's creditors must be paid. Sometimes a claim
must be litigated to determine if it is valid. Any estate administration
expenses, such as attorneys', accountants' and appraisers' fees, must also be
paid.
Manage
the Estate. The executor takes legal title to the assets in the probate estate.
The probate court will sometimes require a public accounting of the estate
assets. The assets of the estate must be found and may have to be collected. As
part of the asset management function, the executor may have to liquidate or
run a business or manage a securities portfolio. To sell marketable securities
or real estate, the executor will have to obtain stock power, tax waivers, file
affidavits, and so on.
Take
Care of Tax Matters. The executor is legally responsible for filing necessary
income and estate-tax returns (federal and state) and for paying all death
taxes (i.e., estate and inheritance). The executor can, in some cases be held
personally liable for unpaid taxes of the estate. Tax returns that will need to
be filed can include the estate's income tax return (both federal and state),
the federal estate-tax return, the state death tax return (estate and/or
inheritance), and the deceased's final income tax return (federal and state).
Taxes usually must be paid before other debts. In many instances, federal
estate-tax returns are not needed as the size of the estate will be under the
amount for which a federal estate-tax return is required.
Often
it is necessary to hire an appraiser to value certain assets of the estate,
such as a business, pension, or real estate, since estate taxes are based on
the "fair market" value of the assets. After the filing of the
returns and payment of taxes, the Internal Revenue Service will generally send
some type of estate closing letter accepting the return. Occasionally, the
return will be audited.
Distribute
the Assets. After all debts and expenses have been paid, the executor will
distribute the assets. Frequently, beneficiaries can receive partial
distributions of their inheritance without having to wait for the closing of
the estate.
Under
increasingly complex laws and rulings, particularly with respect to taxes, in
larger estates an executor can be in charge for two or three years before the
estate administration is completed. If the job is to be done without
unnecessary cost and without causing undue hardship and delay for the
beneficiaries of the estate, the executor should have an understanding of the
many problems involved and an organization created for settling estates. In
short, an executor should have experience
At
some point in time, you may be asked to serve as the executor of the estate of
a relative or friend, or you may ask someone to serve as your executor. An
executor's job comes with many legal obligations. Under certain circumstances,
an executor can even be held personally liable for unpaid estate taxes. Let's
review the major duties involved, which we've set out below.
In
General. The executor's job is to (1) administer the estate--i.e., collect and
manage assets, file tax returns and pay taxes and debts--and (2) distribute any
assets or make any distributions of bequests, whether personal or charitable in
nature, as the deceased directed (under the provisions of the Will). Let's take
a look at some of the specific steps involved and what these responsibilities
can mean. Chronological order of the various duties may vary.
Probate.
The executor must "probate" the Will. Probate is a process by which a
Will is admitted. This means that the Will is given legal effect by the court.
The court's decision that the Will was validly executed under state law gives
the executor the power to perform his or her duties under the provisions of the
Will.
An
employer identification number ("EIN") should be obtained for the
estate; this number must be included on all returns and other tax documents
having to do with the estate. The executor should also file a written notice
with the IRS that he/she is serving as the fiduciary of the estate. This gives
the executor the authority to deal with the IRS on the estate's behalf.
Pay
the Debts. The claims of the estate's creditors must be paid. Sometimes a claim
must be litigated to determine if it is valid. Any estate administration
expenses, such as attorneys', accountants' and appraisers' fees, must also be
paid.
Manage
the Estate. The executor takes legal title to the assets in the probate estate.
The probate court will sometimes require a public accounting of the estate's
assets. The assets of the estate must be found and may have to be collected. As
part of the asset management function, the executor may have to liquidate or
run a business or manage a securities portfolio. To sell marketable securities
or real estate, the executor will have to obtain stock power, tax waivers, file
affidavits, and so on.
Take
Care of Tax Matters. The executor is legally responsible for filing necessary
income and estate-tax returns (federal and state) and for paying all death
taxes (i.e., estate and inheritance). The executor can, in some cases be held
personally liable for unpaid taxes of the estate. Tax returns that will need to
be filed can include the estate's income tax return (both federal and state),
the federal estate-tax return, the state death tax return (estate and/or
inheritance), and the deceased's final income tax return (federal and state).
Taxes usually must be paid before other debts. In many instances, federal
estate-tax returns are not needed as the size of the estate will be under the
amount for which a federal estate-tax return is required.
Often
it is necessary to hire an appraiser to value certain assets of the estate,
such as a business, pension, or real estate, since estate taxes are based on
the "fair market" value of the assets. After the filing of the
returns and payment of taxes, the Internal Revenue Service will generally send
some type of estate closing letter accepting the return. Occasionally, the
return will be audited.
Distribute
the Assets. After all debts and expenses have been paid, the distribute the
assets with extra attention and meticulous bookkeeping by the executor.
Frequently, beneficiaries can receive partial distributions of their
inheritance without having to wait for the closing of the estate.
Under
increasingly complex laws and rulings, particularly with respect to taxes, in
larger estates an executor can be in charge for two or three years before the
estate administration is completed. If the job is to be done without
unnecessary cost and without causing undue hardship and delay for the
beneficiaries of the estate, the executor should have an understanding of the
many problems involved and an organization created for settling estates.
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
more information at http://www.njlaws.com/removing_the_executor_of_an_estate.html
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