Remedy in the Event a Named Executor Fails

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Neither the existing Court Rules of Civil procedure nor any State Statute specifically delineates a time certain in which the Last Will & Testament of a decedent must be offered for probate.

In order to compel the probate of a Last Will & Testament by way of Judicial intervention there is no magical checklist or formula required. However, in general, an interested party must demonstrate to the Court that based upon existing facts and circumstances, among other applicable grounds:

a. there was a demand that the Will be probated,

b. failure to probate the Will exposes the Estate to unnecessary risks, liabilities and losses,

c. the size of the Estate and monies involved requires immediate administration,

d. the heirs have been deprived of the fiduciary duties owed to them,

e. due diligence is immediately required,

f. and that equitable waste is occurring with respect to the assets.

Objection of Appointment of Executor/Administrator

Concomitantly, when the facts apply, the heirs may also object to the person named in the Last Will and Testament from serving as the Executor.

Generally, an interested party must demonstrate to the Court that based upon existing facts and circumstances, among other applicable grounds:

a. the named person is unfit, incapable, incompetent and unsuitable as and Executor or in any other fiduciary capacity;

b. the named person’s misfeasance, nonfeasance, failure to perform his/her fiduciary duties has been and is to the severe detriment of the heirs, creditors and the Estate in general;

c. there is no viable reason justifying his/her dilatory, slow, tardy and remissful behavior;

d. the delay in probating the Will is for personal profit and gains;

e. and that the delay in probating the Will is revengeful, malevolent and spiteful.

When dealing with estates, it is imperative that an individual, beneficiary or interested party, be fully apprised of all legal parameters and consequences applicable to that specific estate. Choosing an experienced law firm, such as mine, will enhance your opportunities in resolving all legal issues which arise in the process.

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