How can I remove or replace an executor who may be acting against the beneficiaries’ interests, and can the executor be held personally responsible for missing funds? – North Carolina

Short Answer

In North Carolina, an executor (also called a “personal representative”) can be removed or replaced through the Clerk of Superior Court overseeing the estate when there is misconduct, conflict of interest, or failure to properly administer the estate. Beneficiaries can also ask the Clerk to require an accounting and documentation showing where estate money went. If estate funds were misused (for example, paid toward the executor’s personal debts), the executor can be held personally liable to repay the estate and may also face claims against the executor’s bond, if one was required.

Understanding the Problem

Under North Carolina probate practice, the key question is: can a beneficiary ask the Clerk of Superior Court to remove or replace an executor when the executor appears to be using estate money for personal purposes, and can the executor be required to personally repay missing funds? This issue usually comes up after the executor has been appointed, has control over estate accounts, and beneficiaries see transactions that do not appear tied to estate debts or proper administration.

Apply the Law

North Carolina law treats an executor as a fiduciary. That means the executor must gather and safeguard estate assets, pay valid estate debts and expenses, and then distribute what remains to the beneficiaries under the will. The probate case is typically supervised by the Clerk of Superior Court in the county where the estate is opened, and the Clerk has authority to address problems through orders requiring information, requiring accountings, and (when justified) removing the executor and appointing a successor.

Key Requirements

Standing (right to ask): The request generally must come from an “interested person,” such as a beneficiary named in the will.
Cause (a valid reason): Removal is typically based on misconduct, self-dealing, mismanagement, failure to follow court/Clerk requirements, or other facts showing the executor is not properly protecting the estate and beneficiaries.
Proof and documentation: The Clerk usually expects specific facts (bank records, missing deposits, unexplained withdrawals, unpaid estate bills, refusal to provide information) rather than general suspicion.

What the Statutes Say

N.C. Gen. Stat. Chapter 28A (Administration of Decedents’ Estates) – North Carolina’s main probate administration chapter; it sets out the executor’s duties, the Clerk’s oversight role, and procedures that can be used when an estate is not being properly administered.
N.C. Gen. Stat. § 28A-13-10(c) (Personal representative liability) – provides that a personal representative can be liable for losses to the estate from misconduct such as embezzlement/commingling, self-dealing, and failure to act in good faith and with the care of a prudent person.

Analysis

Apply the Rule to the Facts: Here, the will names a relative as executor, and the estate is meant to be divided among multiple beneficiaries, including the client. Bank-account activity suggesting estate funds were used to pay the executor’s personal back taxes and other personal expenses is a classic “self-dealing” red flag and can support both (1) a request to remove/replace the executor and (2) a claim that the executor must personally restore the estate for any improper payments. The more clearly the transactions can be tied to non-estate purposes, the stronger the request for court intervention tends to be.

Process & Timing

Who files: An interested beneficiary (or another interested person). Where: The Clerk of Superior Court in the county where the estate is pending in North Carolina. What: A filing asking the Clerk to remove the executor and appoint a successor, often paired with a request to compel an accounting and production of records (estate bank statements, receipts, canceled checks, and an explanation of each questioned transaction). When: As soon as there are specific, documentable concerns; waiting can make tracing funds harder and can increase the risk of further loss.
Next step: The Clerk typically schedules a hearing or otherwise requires a response. In many cases, the Clerk can order the executor to provide a full accounting and supporting documentation, and can enter orders designed to protect estate assets while the issue is pending.
Final step: If the Clerk finds sufficient cause, the Clerk can remove the executor and appoint a replacement to finish the administration. Separately (and sometimes in the same proceeding), the executor can be surcharged (required to repay the estate) for losses caused by improper transactions, and the estate may also pursue recovery through the executor’s bond if one exists.

Exceptions & Pitfalls

Confusing “unfair” with “improper”: An executor can make payments that beneficiaries dislike (for example, paying valid estate debts before distributions). Removal usually requires more than frustration; it requires facts showing mismanagement, self-dealing, or failure to perform required duties.
Not separating estate vs. non-estate accounts: Some accounts pass outside probate (for example, certain payable-on-death or joint accounts). A beneficiary should confirm whether the funds at issue are truly estate assets before alleging misuse.
Missing the bond angle: If the executor posted a bond, recovery may be possible through a bond claim in addition to (not instead of) seeking repayment from the executor personally. Bond procedures and venues can be technical, so it is important to evaluate this early.
Incomplete paper trail: The Clerk is more likely to act quickly when the filing includes bank statements, transaction dates, payee names, and a clear explanation of why each transaction appears personal rather than estate-related.

For more background on beneficiary options in similar situations, see our article on what beneficiaries can do when an executor may have taken estate money and our article on asking the court to remove or replace an executor.

Conclusion

In North Carolina, a beneficiary can ask the Clerk of Superior Court to remove or replace an executor when facts show the executor is mismanaging the estate or using estate funds for personal purposes. If money is missing due to self-dealing or other misconduct, the executor can be held personally responsible to restore the estate under the fiduciary-liability rules in Chapter 28A. The most practical next step is to file a removal request with the Clerk and ask for a court-ordered accounting and supporting bank records as soon as suspicious transactions are identified.

Talk to a Probate Attorney

If an executor may be using estate money for personal expenses or refusing to account for missing funds, our firm has experienced attorneys who can help explain options, timelines, and the steps to seek removal and recovery. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.