Home > Research Legal Advice > Probate > If the executor of the will rips off the other heirs. What can they do?
Asked 6 months ago - San Marcos, TX
FlagIf the an executor of a will did not do his fidelity duties, And he spent all the money of the estate ripping off the other heirs. Can they legally take action in a lawsuit and sue him for his personal assets? If the debt owed is over 10,000? Or can they press criminal charges against him?
An executor must only use estate funds for estate debts, expenses, or distributions. If the executor did otherwise, he is personally liable and could be sued for a civil judgment. The executors personal assets may be seizable, subject to normal exemptions, e.g. homestead. This could be a criminal matter, but it is particularly tough to get District Attorney's interested in prosecuting this kind of abuse.
It sounds as though, from your question, that the Executor has violated his fiduciary duties to the other heirs. The Executor could be liable for breach of these duties, but you should engage a probate litigator to investigate and possibly sue the executor.
As for criminal charges, which in theory the action by the Executor could in fact be criminal, I would be very surprised if a district attorney would accept and prosecute such charges against an Executor. Good luck to you.
There is a statute of limitations regarding the claims you are talking about, so in order to protect yourself, you should consult an attorney immediately.
Assuming probate was opened, the independent or dependent administrator of the estate is/was probably represented by an attorney. If the case is still pending, hiring an attorney of your own to review the court records and request information regarding the estate from the administrator's attorney would be a starting point. After review of any information your attorney obtains, you will be in a better position to determine if you have enough evidence to establish breach of fiduciary duty. If the probate is still pending you could go forward with a removal proceeding. There are also civil remedies for breach of fiduciary duty which could be brought outside of the probate context.
As far as collections go, if a bond was posted, you may be able to collect on the bond.
Unfortunately in Texas collecting on a judgment is not very easy due to the homestead laws, which essentially protect certain assets from being levied against such as, the homestead, wages, and other "exempt" assets. So even with a judgment, unless the person has real property other than the homestead, or cash sitting around in bank accounts (and you know where that cash is located), actually collecting will be difficult. There are other remedies you could ask for, other than a monetary judgment depending on the circumstances.
Misapplication of property by a fiduciary is a crime under the penal code, but as mentioned in the other answers, you will probably have a hard time getting a prosecutor to go forward unless the misapplied funds are very substantial.
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