Blog last updated on June 21, 2021
Sometimes, when someone is named as the executor of a deceased person's estate, they think that role gives them free rein. In truth, the executor acts as a fiduciary, which means they have a legal obligation to act in the interests of the beneficiaries and in accordance with the intentions of the decedent. In other words, being named as an executor means you have a duty to serve in that role honorably, ethically, and in accordance with the law, to the best of your abilities.
The same rules apply when someone is appointed as the trustee of a trust established by the decedent.
Executors are responsible for notifying all beneficiaries and creditors of a will being probated. They must also perform a complete inventory and accounting of the estate. They are allowed to charge a small fee as compensation for the time and effort they have dedicated as an estate administrator, but there is a specific limit to what they are allowed to charge (see NJRS 3B:18-14).
If a fiduciary appointed in any capacity is failing in their duties, they can be compelled by the Surrogate Court to account for their actions (see New Jersey Court Rule 4:87-1(b)). Unfortunately, there are strict time limits to when such actions can be taken, and there may be a limit to what the courts can do to enforce good faith behaviors. The best course of action is to request an accounting of the estate as soon as possible (no later than one year after the appointment of the fiduciary) and to work with a New Jersey probate lawyer to look further into what's going on.
Van Dyck Law is available for consultations and assistance with matters of probate, inheritance, and fiduciary oversight. Call us today at 609.580.1044 or contact us online to discuss your case confidentially and risk-free.
Executors and Trustees Have to Provide Notice and an Accounting
The probate process begins no sooner than 10 days after the death of the decedent. The process starts by naming an executor for the estate. The executor could be designated by the will, but the court has to approve of the designation in any event. If there is no named executor or no one willing to serve as executor who has been named, the court will appoint someone deemed appropriate for the role.
Once probate has begun, the executor has a legal duty to notify all beneficiaries and provide a copy of the will as requested. They must respond to any contests to the will, as well. Anyone with a valid reason to do so can file a Caveat (or other action) within a set time frame. That time frame is four months for individuals living in New Jersey and six months for anyone living outside the state.
As part of the probate process, the executor is expected to assemble a complete accounting and inventory of all estate assets. This accounting is available upon request to all beneficiaries as well as creditors and other interested parties.
Likewise, a trustee is required to keep beneficiaries reasonably informed about the administration of the trust and the information necessary for the beneficiaries to protect their interests. The trustee must promptly respond to the beneficiary's request for information on the administration of a trust. If a fiduciary willfully neglects or refuses to render an accounting or breaches her fiduciary duties, you can ask the court to remove her as the executor or trustee.
New Jersey adopted the Uniform Trust Code (UTC) in 2016, which also means that trustees must keep beneficiaries reasonably informed about any administrative actions or material facts relevant to the beneficiaries' interests.
Taking Action Against an Executor or Trustee Acting in Bad Faith
Individuals appointed as an executor and/or trustee don't always act the way they should. They may purposefully take steps to sabotage the intentions of the will or the trust. This is especially common when the primary beneficiaries are siblings and one sibling, for whatever reason, feels entitled to a larger portion of the estate than others.
In the event a beneficiary or other interested party (with legal standing) suspects misbehavior, they can file a request compelling the executor or trustee to account for the estate's finances and all of their actions since probate began.
Any valid grounds for alleging misconduct and damages can be turned into a complaint, such as a breach of trust, allowing the affected party to seek restitution — as well as legal fees. The court may also order that the trustee/executor be removed, per the UTC.
Note that these actions must take place within six months of the required accounting being disclosed (or refused).
Act Quickly to Protect Your Interests Against an Unscrupulous Executor
Not all of us are as moral — or as self-aware — as the average person. Some individuals placed in charge of an estate or a trust will do everything they can to take advantage of the situation. They may even convince themselves that their actions are justified, both legally and morally.
The truth is that the courts can test whether someone has acted in the interests of the beneficiaries and the estate/trust as a whole. If their actions are deemed improper, they may be ordered to restore the value of assets that should have gone to the intended beneficiary.
However, time is of the essence! You must act quickly once probate has begun or the alleged misconduct has been discovered. Reach out to experienced probate attorneys in New Jersey to learn about your rights and to get to the bottom of what an executor has been doing with your loved one's estate.
Schedule a confidential, risk-free case review with no obligation when you call 609.580.1044 or contact us online.