Removing an Executor, Trustee, or Other Fiduciary in NJ

Estate and Trust Administration

State Senator Peter J. Barnes III introduced a common sense bill to the State Legislature that will simplify the process of removing an executor, trustee, or other fiduciary of an estate in NJ.

Senate Bill 1721 supplements NJ statues by granting Surrogates the ability to remove executors from their positions, or for executors to resign, if necessary.

Under current law the court may discharge a fiduciary (the person responsible for carrying out the details of a will, trust, or other such instrument, such as an executor or trustee) after examination of the matter, provided the action is not prejudicial to the estate or to any interested parties. A fiduciary may be removed if they miss court-mandated deadlines, fail to provide requested accounting or documentation, disobey court orders in regard to the estate, embezzle or abuse the funds with which they are entrusted, or are incapacitated.

The court does not remove fiduciaries lightly, and in order to perform the function of removal several legal obstacles need to be cleared. If the beneficiaries of a will or trust are unhappy with the performance of the named fiduciary, a formal Complaint for Removal must be filed with the Superior Court, along with a signed certification by at least one beneficiary. An Order to Show Cause (a court order that requires a party to provide information relevant to the case) must be filed, signed by the judge, and sent to the fiduciary, who then has the opportunity to provide a written response and appear in court to defend the position.

It’s a complicated, time-consuming, and costly process that can deplete the resources of the estate, create extra work for the courts and lawyers, and cost the beneficiaries a chunk of their inheritance. It is time the process of removing an executor, trustee, or other fiduciary were made easier.

The new bill outlines the situations whereby an executor may be replaced, and grants the county Surrogate (the official responsible for matters that pass through the probate courts) the power to remove and replace a fiduciary, if necessary. It also allows the fiduciary to quit at any time, provided the governing instrument (i.e., the will or trust) allows for this contingency.

The new process is a bit  simpler, in that it requires less paperwork and court involvement. A fiduciary can resign by simply giving written notice via registered mail to any co-fiduciaries or other interested partied, provided a successor can be found. And a fiduciary can be removed “without leave of the court” (that is, without the court’s intervention) as long as the same steps are followed. A copy of the will, which must include the language allowing for the removal, must be filed with the Surrogate, and the fiduciary must provide proof that they have carried out the intent of the will to the extent possible prior to their removal. Any opposition to the removal or resignation must be given to the Surrogate within 20 days of the mailing of the notice.

Under the new bill, the resigning or removed fiduciary still receives any fees associated with the job, based on the time served and the court’s determination of what is a “just and equitable” commission. The resigned or removed fiduciary is also still responsible for any monies handled, and is liable for any abuse or neglect of the funds.

The intent of the bill, according to its sponsor, is to “help reduce the costs of administering estates and testamentary trusts.” The bill is a good example of good legislation that simplifies unnecessarily complicated matters, saves people time and money, and makes it easier for everyone to do what needs to be done. We support the bill, and urge you to contact your legislators to let them know if you agree with us.

If you have questions about your will or trust, please give us a call at 856-227-7888, or contact us at [email protected] to schedule a free consultation.

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The above is not specific legal advice nor does it create a lawyer-client relationship. Do not rely upon it without consulting an attorney to see how the information presented fits your unique circumstances.





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