When you dispute the position of an executor in a probate case in Los Angeles, there are many questions that come up which may put you in the position of a removal challenge to the executor or even the will itself.
What is considered “good cause” or grounds to challenge an executor to remove him or her in California?
California Probate law requires good cause to remove an executor. In removing a personal representative or executor, you must first file a petition to remove an executor stating your reasons or causes for such a request. Because California inheritance rules favor the designation of the person who was named in the will, you must be able to present your argument and show why having that particular executor is not in the best interest of the estate as a whole, or a change in circumstances that disable the executor from properly satisfying his or her duty as an executor. In general, contempt of the court, the bankruptcy of an executor or a criminal act by an executor which may affect the assets of the estate, as well as incapacity or death of an executor are common reasons for removing an executor and replacing the executor. When there is no will and a will is later found, upon admission of the later will, the old administrator will be removed in favor of an executor named in the later found will.
Good Cause to Replace an Executor:
- Negligence of executor’s duties leading to loss;
- Incapacity, death or inability to act as executor;
- Financial disqualification;
- A Surcharge order;
- Contempt of a prior order;
- Failure to Account;
- Embezzlement from the estate;
- Failure to tender an account on a timely basis;
- Other breach of fiduciary duty causing loss to the estate.
What are the financial risks in removing or challenging an executor?
If you fail to remove an executor for good cause, you may trigger a no-contest clause in the will, and where there is a trust, you may accidentally trigger a no-contest clause there too. This poses a risk to you in that it may cause your disinheritance.
Who can ask for the removal of an executor?
California Probate Code 8503 provides that a spouse or a relative entitled to a relative of the decedent entitled to succeed to all or part of the estate, or a nominee of the spouse or relative may file such a petition to remove.
How long does it take to remove an executor in Los Angeles California?
It takes over a year to remove an executor, but if you can see an emergency, the Court may consider suspending an executor before a formal removal trial.
How do you replace an executor in Los Angeles California?
A Petition for Appointment of a Successor Administrator or a Petition for Appointment of a Special Administrator can be used to replace the suspended or deceased executor. Depending on the circumstances and your probate judge, he or she may have a preference for which method you will use.
Can I become an executor in California?
You can become an executor if you have been named in the will as the executor or successor executor. If you have not been named in the will, and you are a relative, you may become an administrator with will annexed or just an administrator. Ask our estate attorney, Mina Sirkin, if you want to become the executor or administrator of the estate of a loved one or family. As an administrator, you must be bonded or the court may waive the bond in very limited circumstances.
How to become a Successor Administrator in Los Angeles California?
You must file a Petition for Probate, or if you want to be a successor administrator, a Petition for Appointment of a Successor Administrator. If you are named as an alternate executor in the will of the decedent, you will fie a Petition for Probate, and explain what has happened to the prior executor.
Getting a bond when you become an executor in Los Angeles California:
If the will does not waive the requirement of the bond, you must make an effort to obtain a bond in Los Angeles California via a surety company who will send you a bond application before they commit to a bond. The amount of the bond is based on a formula in California and generally includes the liquid assets and the annual income of the estate, or if there is a sale of real property, then the value of the proceeds of the real estate.