How to Collect Your Inheritance When the Executor Fails to Act

The executor of a will handles the estate of someone who has died, including paying the estate's debts and taxes and distributing the assets to the beneficiaries. The executor must do this work in a timely manner and to act in the best interest of the beneficiaries.

But what if you're a beneficiary waiting for your inheritance and the executor fails to act? For example, what happens if the executor refuses to distribute property to the beneficiaries? Can the beneficiaries remove the executor and appoint another?

First, consider whether the executor is really failing to act or if the process of wrapping up the estate is just taking longer than you'd like it to. Then, if the amount of time is truly unreasonable, consider whether the executor's actions or inactions warrant removal. If they do, you can petition the probate court to remove the executor or you can sue the executor for damages.

How Long Does an Executor Have to Settle an Estate?

The process of wrapping up an estate takes time, even when things are going well. Depending on how complex the estate is, the process can take anywhere from a few months to several years. There is no set time limit. And importantly, the executor can distribute the assets only after the property is evaluated and debts and taxes are paid. So beneficiaries often do not get their inheritances until everything else is wrapped up. If the executor were to pay the beneficiaries first, the executor would be personally liable for any debts and taxes that must be paid later.

So, how long does an executor have to distribute the property in a will? As much time as it takes.

That said, an executor may not stall the process for no reason. Unreasonable delays caused by an executor's actions (or failure to act) may be grounds for removal or possibly a lawsuit to recover damages.

Determine Whether You Have a Case

First, try speaking to the executor about your grievances. The executor may have information that reasonably explains the delay. If that doesn’t work, you may want to look into taking legal action against the executor.

To remove someone from the role of executor, you must be able to prove to the probate court that the executor is not living up to the responsibilities of the position or is doing something illegal. The court may remove an executor who:

• is no longer eligible (for example, if the executor was convicted of a felony after being named executor)
• is not suitable (for example, if the executor has a conflict of interest)
• is not competent (for example, if the executor fails to carry out the wishes of the deceased person or fails to do anything at all), or
• mismanages the estate (e.g., steals from the estate or wastes the assets).

An executor must do something seriously wrong for the court to act. But if the executor is basically doing a sufficient job, a court will not likely remove the executor, even if the process is taking a really long time.

If you're worried about the executor taking money from the estate, keep in mind that executors are generally permitted to receive executor fees from the estate. They can also use the estate's money to hire professionals like lawyers or accountants if such services are needed to wrap up the estate. To have a viable complaint against the executor, you'd need to show that the executor was taking more from the estate than is legally permitted. A probate lawyer can help you figure out whether the executor is acting within the law.

Seek Legal Recourse

If you believe the executor is failing to properly administer the estate (either through improper actions or through inaction), you have two options: petition the court to remove the executor or file a lawsuit against the executor.

Petitioning the Court to Remove the Executor

Beneficiaries can petition the court to remove the executor from the position if they can prove the executor should be removed for one of the reasons listed above. The court will hold a hearing where both parties can tell their side of the story. If it finds that the executor is insufficiently doing the job, the court can remove the executor and appoint another one. The new executor will usually be the alternate executor (if the will named one) unless you've given the court reason to believe that it should name someone else.

Filing a Lawsuit Against the Executor

If you can show that you’ve suffered financially from the executor's actions (or inactions), you can sue the executor. For example, if the executor stole or failed to protect the assets from the estate, you can bring a lawsuit that demands that the executor pay back the estate for the losses. Keep in mind that you may be able to settle before going to court.

You can (and will probably want to) file a petition to remove the executor in tandem with suing the executor for damages. However, if neither you nor the estate has suffered actual monetary damages, your only recourse is to petition to remove the executor. You will not be able to sue the executor if there are no damages to recover.

How Much Will It Cost?

How much it costs to remove an executor or bring a lawsuit really depends on the circumstances. For example, it will depend on the complexity of the estate, the nature of the complaints against the executor, and the filing fees of that specific probate court. Petitioning to remove an executor will likely cost less than bringing a lawsuit. In either case, you will need to hire a lawyer, and that can get expensive fast. However, a lawyer can:

• give you advice about whether you have a case
• prepare all court documents, and
• present the facts to the court in a way that will give you the best chance of winning.

If hiring a lawyer is not an option for you, you may be able to file a petition for removal without a lawyer. In that case, your main expense will be filing fees. To try this, you'll need more information about how to file petitions in your county. First, look on the court's website for information about filing a petition "in pro per" or "pro se." Next, ask the court clerk (in person or on the phone) if they have any self-help materials for your situation. Finally, try visiting a local law library and asking a librarian for help.