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It is a sad truth that not all appointed executors are up to the task. Some people are blindsided by the position, completely unaware their loved one chose them until the event of their death. Others think they can handle it but grief or an uncontrollable circumstance leaves them overwhelmed.

If you think the executor of a will is overburdened, unqualified, or simply the wrong person for the job, can you remove them? Is there a way to do so compassionately?

Why would you need to remove an executor?

Executors are sometimes the deceased’s spouse, adult child, parents or friend. Although your loved one may have trusted them when they wrote their will, circumstances can change.

The following are reasons you may want to remove an executor:

  • The person is not mentally sound.
  • The person is not financially responsible.
  • The person’s relationship with the deceased or their beneficiaries changed significantly before their death.
  • The person lives far away and is therefore unable to make deadlines. (California does not have an in-state residency requirement for executors, but distance can make things difficult.)
  • The person neglects their fiduciary duties regarding the estate.

There is a narrow window of time to remove an executor from the position before they do irreparable damage to the estate (either intentionally or unintentionally). You may need legal assistance to approach them with your concerns.

How can you communicate with them compassionately?

Know that many wills or estate plans name a backup executor who can serve in the event the first choice cannot. A legal advisor can help you find and prepare this person, or if you are that person, they can help you prepare a discussion with the current executor.

Your discussion can center around your concern for the estate, the beneficiaries, the person’s legacy or even important upcoming deadlines and the real consequences for missing them. They have a legal responsibility to perform their duties to the best of their ability. It might not be their fault that their best isn’t compatible with what the estate needs.

An advisor can help guide this discussion in private or in front of a judge. If you need to remove an executor of an estate, learn about your legal options.

Having siblings has its good points and bad. If you were fortunate to get along with your brothers and sisters, you may have friendships with them as adults that you cherish above all others. However, if tension or rivalry existed among you growing up, those old resentments may be difficult to overcome.

If you recently lost your parents, you may find those childhood rivalries rearing their ugly heads, especially if your parents didn’t divide the estate the way you expected. In fact, you may even suspect that the will your parents signed is not valid.

Grounds for disputing a will

Contesting a will is difficult. In fact, courts start with the assumption that a will truly expresses the wishes of the deceased, so if you decide to challenge your parent’s will, you will have a tough road ahead. The burden of proving the invalidity of the document will be squarely on your shoulders. To challenge your loved one’s will, you must suspect one of these factors:

  • Your loved one didn’t prepare the will according to the laws of the state where he or she lived and died. For example, some states like California allow handwritten wills, some require a certain number of witnesses and other states have rules regarding the signatures on wills.
  • Your loved one didn’t know what he or she was doing. Having cognitive awareness of one’s assets, heirs and actions when signing a will is known as testamentary capacity. It is a delicate undertaking to prove your loved one did not have testamentary capacity during the signing of the will.
  • Someone pressured or tricked your loved one into signing the will. You may feel the will doesn’t express the wishes of your loved one because someone else influenced or intimidated him or her into changing its contents. Perhaps, on the other hand, your loved one had no idea he or she was signing a will when the document was presented.

The sticking point is in proving these claims. Without witnesses, charges of undue influence or fraud are extremely fragile, and the presence of testamentary capacity may be fleeting and still not render a will invalid.

Are you ready to start the contest?

You can see that contesting a will is not something you can do simply because you disagree with the way your loved one divided the estate among the heirs. It is not something to take lightly or frivolously. However, if you believe you have legitimate reasons for questioning the contents of your loved one’s will, you may wish to know the next step to take. Laws in each state differ and change periodically, and you would do well to seek legal advice.

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