How Can a Beneficiary Petition Removal of an Executor for Breaches of Fiduciary Duty in North Carolina Probate?
1. Detailed Answer
In North Carolina probate, an executor serves as a fiduciary. The law imposes on that executor a duty of loyalty, care and impartiality when administering an estate. A beneficiary who believes the executor has mismanaged assets, failed to provide an accurate inventory, mixed personal and estate funds, refused to render accounts or engaged in dishonesty can ask the court to remove the executor.
State law sets out both the grounds and the procedure. Under G.S. 28A-18-1, a personal representative (executor) stands subject to removal if the court finds that the executor:
- Misuses or fails to manage estate property properly;
- Neglects duties, including failure to file required inventories or accountings;
- Engages in conduct that amounts to fraud, gross misconduct or conflict of interest; or
- Demonstrates unfitness or unwillingness to serve.
To begin, the beneficiary drafts a petition stating the specific breaches with supporting facts. The petition goes to the clerk of superior court in the county where the estate is pending. Under G.S. 28A-18-2, the clerk sets a hearing date. The petitioner must serve the executor and other interested parties with notice of the petition and hearing date.
At the hearing, the beneficiary carries the burden to prove the breaches by a preponderance of the evidence. If the court finds sufficient grounds, it will issue an order removing the executor. In many cases, the court also orders the former executor to file a full accounting and may impose a surcharge for any losses or unauthorized distributions under G.S. 28A-18-3. Finally, the court appoints a successor personal representative to complete estate administration under G.S. 28A-18-4.
Timing matters. A beneficiary should act promptly once they discover breaches to preserve estate assets and enforce rights. Gathering clear documentation of missing funds, late filings, conflicting transactions or other misconduct strengthens the petition.
2. Key Takeaways
- Understand executor’s duties: loyalty, care and impartiality in estate administration.
- Identify breaches: mismanagement, failure to account, fraud, conflict of interest.
- Cite grounds for removal: G.S. 28A-18-1 provides statutory grounds for removal.
- Follow procedure: file a petition, serve notice, attend a court hearing under G.S. 28A-18-2.
- Burden of proof: show breaches by a preponderance of the evidence.
- Possible court orders: removal, accounting, surcharge and appointment of a successor under G.S. 28A-18-3 and G.S. 28A-18-4.
- Act quickly: protecting estate assets and beneficiary rights depends on prompt action.
Removing an executor for breaches of fiduciary duty demands a clear plan, documentary proof and strict compliance with North Carolina’s probate statutes. Whether you have questions about the grounds, the petition process or the hearing, Pierce Law Group’s attorneys bring years of probate administration experience to guide you.
Take action today: Contact Pierce Law Group for personalized help. Email us at intake@piercelaw.com or call (919) 341-7055. Our team will review your situation, explain your options and work to protect your interests in North Carolina probate.
