Hello. My sister has been acting as executor of our late mother's estate. The family assumed that she would just 'take over' after Mom died, but now I am hearing that she was supposed to submit the will and living trust to probate court for authentication; after which the court would 'name' her as executor.
She has not done this, because she has no idea that she was supposed to do this, neither did any of us know about the requirement.
Moreover, our sister has been very lax in fulfilling the duties of executor; specifically in producing bank account records and taking inventory of the tangible personal property. She spends more time going out to parties and birdwatching than she does anything else. My brother (who lives in Colorado) and I are very concerned that she will cause the house to be taken by the bank (as there is a reverse mortgage on it).
The Trust names me as executor after her (should she not be able to do the job). Under this circumstance, could I go to a court with my copy of the Trust and ask them to name me executor?
2 Answers from Attorneys
Yes, you may petition the court to order you to be named the successor trustee if the previous trustee failed to perform their duties as trustee.
Of note, the term "executor" is not the term used for trust matters, rather the term is "trustee."
However most, if not all, trusts allow for the change in trustee to occur outside of court action. The trusts I write allow for non-judicial trustee succession. Regardless, you or a lawyer should read the entire trust document before you go further since it will most likely explain how to handle a problem with trustee incompetence/laziness.
If your sister is causing waste and damaging estate/trust assets, then you can request to have her removed as the executor/trustee of the estate/trust. However, you will need to retain an attorney to assist you with this.
Good luck, and if you need further assistance, please do not hesitate to contact me.
Kai H. Wessels, Esq.
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