Losing a loved one can without any doubt be an emotional experience. This is all made worse if you have to deal with an uncooperative executor.
When a family member or friend names you as a beneficiary in their will, you automatically expect that the probate process will sooner rather than later draw to a close and you will get your inheritance. However, it sometimes happens that months or even years pass by and the executor has continually refused to distribute the estate’s assets. What if they refuse to answer your phone calls, take no notice of your emails, or offer endless excuses?
Fortunately, in Massachusetts, beneficiaries are not powerless. The Massachusetts Uniform Probate Code (MUPC) imposes strict rules for how estates should be administered, and it provides a clear legal pathway that holds a negligent or hostile executor accountable.
If you find you are trapped in the probate process and the delay seems endless you will need to know your rights and the precise steps to take to force closure on the distribution of the estate.
When a delay seems “unreasonable”
Before you can take any legal action you need to know if it’s a legally necessary delay or executor misconduct. Administering any estate is not an easy task, and even the most diligent executors face strict timelines that are imposed by Massachusetts law.
The 12 month creditor claim period
Massachusetts law states that creditors have exactly 12 months from the date of the decedent’s death to file a claim against the estate for unpaid debts. Because an executor can be held personally liable if the estate funds are paid out to beneficiaries before debts are paid many executors will wait out this 12 month period before finalizing distributions to beneficiaries.
Tax obligations
If the estate is so large that it owes federal or state estate taxes, or if the decedent’s last income tax return was complex, the executor is not able to safely bring closure to the estate until a closing letter has been received from the Department of Revenue (DOR) or the IRS. This procedure can add months to the timeline.
When to worry
If the estate appears to be quite straightforward and there are not many debts, but the one-year mark has passed and the executor has failed to communicate, the delay has likely crossed the line into being unreasonable.
Red flags revealing executor mismanagement
While delays do happen for perfectly valid reasons, there is some behaviors that should immediately put a beneficiary on high alert. If you notice any of the following signs, it may be time to seek legal advice:
- The executor does not return phone calls, reply to letters, or provide any basic updates regarding the process of the probate.
- There is a lack of transparency when the executor refuses to share any about the estate’s bank accounts, valuation of property, or assets sales
The executor was found to be living in the decedent’s home free of rent, driving the decedent’s car, or paying for personal expenses using estate funds.
- They missed the deadline date to file the estate’s initial inventory or failed to publish any legally required notices.
- The executor has allowed interpersonal hostility, such as long-standing grudges to dictate how the estate is being managed and how beneficiaries are being treated.
Request a formal accounting
The first thing you should do as a beneficiary is to request an update and a formal accounting of the estate.
An executor has a fiduciary duty to all the beneficiaries, which means they are legally required to act in the best financial interests of the estate and its heirs, not themselves. Part of this duty is keeping meticulous, transparent financial records.
The initial inventory
Within 3 months of being appointed by the probate court as an executor the person must prepare an inventory of all the decedent’s real and personal property, including its reasonable market value at the time of the death. If this hasn’t been done any beneficiary has the the right to demand a copy.
The written accounting request
You, as a beneficiary, or a probate attorney working on your behalf, should send a formal, written demand for financial accounting. This document should provide details of every dollar that has entered and exited the estate, including bank statements, appraisal reports, liquidations, and receipts for estate expenses.
Often, receiving a formal letter from your attorney is enough to prompt a negligent executor to realize they are being watched and to start moving the distribution process forward.
Involve the Massachusetts Probate and Family Court
If a written demand fails to yield results, or if the executor flatly refuses to cooperate, you must escalate the matter to the Massachusetts Probate and Family Court in the county where the estate was opened.
Beneficiaries have several powerful legal petitions at their disposal to force an executor’s hand.
1. Petition to compel an accounting
If the executor has refused to provide financial records, you can ask a probate judge to order them to provide them. If the judge grants the petition, the executor faces a strict court order deadline to produce all the financial documents. If they don’t comply with a judge’s order this could result in the executor being held in contempt of court, which can attract legal and financial penalties.
2. Petition to compel distribution
If the 12 month creditor period has expired and all taxes and debts have been paid there is no logical reason for the executor to not pay out the funds. You can now file a Petition to Compel Distribution. At the hearing, the executor is required to stand before a judge and explain precisely why the assets haven’t been distributed. If the explanation is inadequate, the judge will issue an order which will force them to provide you with your inheritance by a specified date.
3. Petition for removal of the executor
If the executor is displaying extreme negligence or even obvious fraud, the only reasonable path to take is to strip the executor off the job.
Under current Massachusetts law, a judge can remove an executor if it can be proved that they are “unsuitable” to perform the required duties. Grounds for removal are as follows:
- Breach of fiduciary duty which means mismanagement of the estate’s funds, selling assets at well below their market value, or self-dealing such as buying one of the estate’s properties at a discount for use by themselves.
- Become incapacitated due to a mental or physical illness being diagnosed that stops them from fulfilling the executor role.
- Wasting the estates’ assets by letting a home fall into disrepair, not paying the appropriate property taxes and failing to invest or protect liquid funds.
- Persistently being disobedient, such as ignoring court orders or failing to file the mandatory documents.
If the court strips the executor of the role, the judge will go ahead and appoint a successor executor who is often named in the decadent’s will as an alternative executor. If this isn’t relevant, an independent personal representative may be asked to step in, sort out the mismanagement, and conduct the distributions fairly.
If an executor’s postponement or negligence means the estate has lost some of its monetary value the court can order the payment of a surcharge which means the executor must pay any loss of value out of their own personal pocket so that beneficiaries don’t miss out.
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