What to do if my cousin is the executor for my late sister’s Will but is not acting in the best interests of the estate?

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What to do if my cousin is the executor for my late sister’s Will but is not acting in the best interests of the estate?

She has already taken the car, signing it over to herself. There is insurance money and a house involved and my sister’s mentally disabled son. She is suppose to set-up something to take care of my sister’s son. It looks like my cousin is planning to take everything. Who should we be talking to?

Asked on May 28, 2013 under Estate Planning, New Jersey

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If the Will has a provision for removal of this executor and appointment of a successor, invoke that provision.

If the Will does not have that provision, file a petition with the Probate Court to have the cousin removed as executor and a successor appointed.  Your petition filed with the Probate Court should also seek the remedy of a constructive trust against the cousin.  A constructive trust means that the cousin will be ordered to return to the estate the property and proceeds she has wrongfully taken.

Whether or not the Will has a provision for removal of the executor, the estate should still sue the executor to obtain the remedy of a constructive trust.


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