What remedies are available if executor has abused powers under the estate?
Full Question:
Answer:
When it is suspected that an executor of an estate has abused or breached of his/her fiduciary duties, heirs, beneficiaries and legatees have the right to pursue a claim with the probate court.
A personal representative (executor) has certain obligations to perform, including providing information to beneficiaries and heirs.
TITLE 15
UNIFORM PROBATE CODE
CHAPTER 3
PROBATE OF WILLS AND ADMINISTRATION
PART 7.
DUTIES AND POWERS OF
PERSONAL REPRESENTATIVES
15-3-705. DUTY OF PERSONAL REPRESENTATIVE -- INFORMATION TO HEIRS AND
DEVISEES. Not later than thirty (30) days after his appointment every personal
representative, except any special administrator, shall give information of
his appointment to the heirs and devisees, including, if there has been no
formal testacy proceeding and if the personal representative was appointed on
the assumption that the decedent died intestate, the devisees in any will
mentioned in the application for appointment of a personal representative. The
information shall be delivered or sent by ordinary mail to each of the heirs
and devisees whose address is reasonably available to the personal
representative. The duty does not extend to require information to persons who
have been adjudicated in a prior formal testacy proceeding to have no interest
in the estate. The information shall include the name and address of the
personal representative, indicate that it is being sent to persons who have or
may have some interest in the estate being administered, indicate whether bond
has been filed, and describe the court where papers relating to the estate are
on file. The personal representative's failure to give this information is a
breach of his duty to the persons concerned but does not affect the validity
of his appointment, his powers or other duties. A personal representative may
inform other persons of his appointment by delivery or ordinary first class
mail.
The personal representative also has the obligation to create an inventory of all estate property.
TITLE 15
UNIFORM PROBATE CODE
CHAPTER 3
PROBATE OF WILLS AND ADMINISTRATION
PART 7.
DUTIES AND POWERS OF
PERSONAL REPRESENTATIVES
15-3-706. DUTY OF PERSONAL REPRESENTATIVE -- INVENTORY AND APPRAISEMENT.
Within three (3) months after his appointment, a personal representative,
except for a special administrator or a successor to another representative
who has previously discharged this duty, shall prepare an inventory of
property owned by the decedent at the time of his death, listing it with
reasonable detail, and indicating as to each listed item, its fair market
value as of the date of the decedent's death, and the type and amount of any
encumbrance that may exist with reference to any item.
The personal representative shall send a copy of the inventory to
interested persons who request it, and he may file the original of the
inventory with the court.
Breach of these duties will create certain consequences for the executor.
TITLE 15
UNIFORM PROBATE CODE
CHAPTER 3
PROBATE OF WILLS AND ADMINISTRATION
PART 7.
DUTIES AND POWERS OF
PERSONAL REPRESENTATIVES
15-3-712. IMPROPER EXERCISE OF POWER -- BREACH OF FIDUCIARY DUTY. If the
exercise of power concerning the estate is improper, the personal
representative is liable to interested persons for damage or loss resulting
from breach of his fiduciary duty to the same extent as a trustee of an
express trust. The rights of purchasers and others dealing with a personal
representative shall be determined as provided in sections 15-3-713 and
15-3-714 of this Part.
Furthermore, if the executor wants to keep certain estate property, the statues have a procedure to follow to ensure no conflicts of interest are present.
TITLE 15
UNIFORM PROBATE CODE
CHAPTER 3
PROBATE OF WILLS AND ADMINISTRATION
PART 7.
DUTIES AND POWERS OF
PERSONAL REPRESENTATIVES
15-3-713. SALE, ENCUMBRANCE OR TRANSACTION INVOLVING CONFLICT OF INTEREST
-- VOIDABLE -- EXCEPTIONS. Any sale or encumbrance to the personal
representative, his spouse, agent or attorney, or any corporation or trust in
which he has a substantial beneficial interest, or any transaction which is
affected by a substantial conflict of interest on the part of the personal
representative, is voidable by any person interested in the estate except one
(1) who has consented after fair disclosure, unless:
(a) the will or a contract entered into by the decedent expressly
authorized the transaction; or
(b) the transaction is approved by the court after notice to interested
persons.
It would be recommended that you have a local attorney evaluate the particular facts involved and make recommendations for pursuing an action against the executors despite any paperwork you may have signed previously.
