Removing an Executor in California: Grounds, Process & Your Rights

"My brother is the executor and he's stealing from the estate. Can we remove him?"

As a Glendale probate attorney who handles executor removal cases, I know how devastating it is when an executor breaches their fiduciary duties. Whether through theft, mismanagement, self-dealing, or simply incompetence, a bad executor can destroy estate value and harm beneficiaries.

California law provides a process to remove executors who are unfit to serve, but removal requires proving specific grounds and following formal court procedures. Understanding when and how executors can be removed helps beneficiaries protect their inheritance.

This comprehensive guide explains valid grounds for removing executors in California, who can petition for removal, the removal process step-by-step, evidence needed, what happens to the executor after removal, costs and timeline, and how to protect estate assets during removal proceedings.

When Can an Executor Be Removed?

California Probate Code Section 8502 lists grounds for removing executors.

Valid Grounds for Removal

1. Waste, Embezzlement, or Mismanagement

Executor:

• Steals estate assets
• Uses estate money for personal benefit
• Invests recklessly
• Allows property to deteriorate
• Fails to collect debts owed to estate
• Spends estate money unnecessarily

Examples:

• Executor lives in estate house rent-free
• Uses estate credit card for personal expenses
• Sells property to themselves below market value
• Gambles with estate funds
• Fails to pay property insurance

2. Long-Continued Failure to Perform Duties

Executor:

• Fails to file inventory on time
• Doesn't pay creditors
• Ignores court deadlines
• Refuses to distribute assets
• Abandons executor responsibilities
• Doesn't respond to beneficiaries or court

Timeline matters: Occasional delays may not warrant removal, but persistent failure does.

3. Insolvency or Other Financial Incapacity

Executor:

• Files personal bankruptcy
• Has severe financial problems
• Cannot manage own finances
• Judgments against executor personally

Concern: Financially troubled executor may be tempted to misuse estate assets.

4. Gross Incompetence

Executor:

• Lacks mental capacity to serve
• Demonstrates inability to handle responsibilities
• Makes repeated serious errors
• Doesn't understand fiduciary duties

Different from simple mistakes: Pattern of incompetence required.

5. Commission of Fraud

Executor:

• Lies to beneficiaries
• Conceals assets
• Creates fraudulent documents
• Misleads court
• Forges signatures

Serious misconduct requiring removal.

6. Permanent Incapacity or Illness

Executor:

• Develops dementia
• Suffers stroke or serious illness
• Becomes mentally incompetent
• Physically unable to perform duties

Not fault-based, but executor cannot serve.

7. Removal in Best Interest of Estate

Catch-all provision for circumstances not fitting other categories.

Examples:

• Serious conflict with beneficiaries prevents effective administration
• Executor's actions causing estate to lose money
• Circumstances make continued service detrimental

Court has discretion to determine what serves estate's best interest.

8. Failure to Meet Statutory Requirements

Executor:

• Never qualified (didn't take oath, didn't obtain letters)
• Moved out of state without approval
• Lost bond coverage
• Convicted of crime affecting trustworthiness

What Is NOT Grounds for Removal

Insufficient grounds:

• Beneficiaries simply don't like executor
• Personality conflicts without financial harm
• Executor makes decisions beneficiaries disagree with (if reasonable)
• Executor takes allowed compensation
• Isolated minor errors
• Delay alone (without pattern of neglect)

Disagreement ≠ Grounds for removal

Who Can Petition to Remove an Executor?

California Probate Code Section 8500

Interested Persons Who Can File

1. Beneficiaries Named in Will

• Anyone entitled to inherit under will
• Even if receiving small share

2. Heirs at Law

• People who would inherit if no will
• Even if will leaves them nothing

3. Creditors of Estate

• If executor's mismanagement threatens creditor payment

4. Other Executors (Co-Executors)

• Can seek removal of problematic co-executor

5. Public Administrator

• If circumstances warrant

Standing Requirement

Must show: You have financial interest affected by executor's actions.

No standing:

• Friends with no inheritance interest
• Distant relatives with no claim
• General public

The Removal Process: Step-by-Step

Step 1: Document Executor Misconduct

Before filing petition, gather evidence:

Financial records:

• Bank statements showing misuse of funds
• Credit card statements
• Checks written to executor
• Unexplained transactions
• Missing assets

Communications:

• Emails or texts showing dishonesty
• Refusal to provide information
• Threats
• Admissions of wrongdoing

Timeline of failures:

• Missed deadlines
• Unperformed duties
• Documented requests executor ignored

Witnesses:

• Other beneficiaries
• Estate professionals
• Anyone with relevant knowledge

The more documentation, the stronger your case.

Step 2: Consider Informal Resolution

Before court action:

Options:

1. Send letter demanding executor comply with duties
2. Request meeting with executor and attorney
3. Propose executor voluntarily resign
4. Mediate dispute

Benefits of resolving without litigation:

• Saves time and money
• Preserves family relationships
• Avoids further estate depletion from legal fees

But: If misconduct is serious or executor refuses to cooperate, court action necessary.

Step 3: File Petition for Removal

Required form: Petition for Removal (no specific Judicial Council form - custom drafted)

Petition must include:

• Your relationship to estate
• Your standing to petition
• Grounds for removal (specific facts)
• Evidence supporting grounds
• Request for temporary suspension pending hearing
• Nomination of successor executor

File with: Probate court handling estate

Filing fee: $435

Serve: Executor and all interested parties

Step 4: Request Temporary Suspension

California Probate Code Section 8503

If immediate danger to estate:

Can request:

• Temporary suspension of executor
• Appointment of temporary administrator
• Restraining order preventing asset transfers
• Freeze on estate accounts

Court will grant if: Clear showing of immediate harm to estate.

Example: Evidence executor is actively embezzling funds.

Step 5: Discovery

After petition filed:

Can conduct formal discovery:

• Interrogatories to executor
• Requests for production of documents
• Deposition of executor
• Subpoena bank records
• Obtain accountings

Uncover full extent of mismanagement or theft.

Step 6: Court Hearing

Hearing scheduled 4-8 weeks after filing.

At hearing:

Petitioner's burden:

• Present evidence of grounds for removal
• Prove by preponderance of evidence
• Call witnesses
• Present documents

Executor's defense:

• Rebut allegations
• Present explanations
• Show actions were reasonable
• Demonstrate no harm to estate

Judge decides:

• Whether grounds for removal exist
• Whether removal serves estate's best interest
• Who should serve as successor

Standards vary by ground:

• Theft/fraud: Removal almost certain
• Incompetence: Pattern must be shown
• Delays: Must be severe and ongoing
• Best interest: Court has discretion

Step 7: Order of Removal

If court grants petition:

Order will:

• Remove executor from office
• Revoke letters testamentary/administration
• Appoint successor executor
• Order accounting from removed executor
• May order return of misappropriated assets
• May refer to law enforcement (if theft)

Removed executor:

• Must immediately cease acting as executor
• Must turn over all estate property
• Must provide accounting
• Remains liable for mismanagement

Successor Executors

Who Becomes Executor After Removal?

Priority order (Probate Code §8201):

1. Successor named in will

• If will names alternate executor

2. Remaining co-executor

• If multiple executors, remaining one(s) continue

3. Person nominated by beneficiaries

• If beneficiaries agree on someone

4. Any qualified person

• Court appoints someone suitable

5. Public administrator

• If no one else available

Appointment Process

Court appoints successor at same hearing or subsequent hearing.

Successor must:

• Qualify (take oath)
• Post bond (unless waived)
• Obtain new letters
• File inventory if not yet filed

Successor takes over where removed executor left off.

Consequences for Removed Executor

Personal Liability

Removed executor remains liable for:

1. Surcharge for losses caused

• Must repay estate for misappropriated funds
• Liable for lost value due to mismanagement
• Interest on misused funds

2. Denial of compensation

• May forfeit executor fees
• Must return fees already paid if misconduct

3. Attorney fees

• May be ordered to pay petitioner's attorney fees
• Must pay own attorney fees

4. Restitution

• Order to return specific property
• Reimburse estate for improper expenses

Criminal Prosecution

If theft or fraud:

Possible criminal charges:

• Embezzlement
• Elder theft (if victim was elderly)
• Forgery
• Fraud

Separate from civil removal proceeding.

District Attorney decides whether to prosecute.

Bond Claims

If executor had surety bond:

Surety company:

• Must pay estate for executor's misconduct
• Up to bond amount
• Then surety sues executor for reimbursement

This is why courts require bonds.

Costs and Timeline

Attorney Fees

Removing executor requires attorney representation.

Typical costs:

Straightforward case:

• Initial petition: $5,000-$10,000
• Through hearing: $10,000-$25,000
• With discovery and trial: $25,000-$75,000+

Complex case with significant theft:

• $50,000-$150,000+

Hourly rates: $350-$650/hour for probate litigation

Can Petitioner Recover Fees?

California Probate Code Section 11003

Court may award fees from estate if:

• Petition brought in good faith
• Benefits estate to remove bad executor
• Petitioner successful

Common outcome: Petitioner's fees paid from estate if removal granted.

But: Not guaranteed - court has discretion.

Timeline

Total timeline: 6-18 months typically

Breakdown:

• File petition to hearing: 2-3 months
• Discovery period: 3-6 months
• Trial (if needed): 6-12 months
• Appeals (if filed): +12-24 months

Emergency suspension: Can be granted within days or weeks if necessary.

Protecting Estate Assets During Removal

Emergency Measures

If executor is actively harming estate:

Immediate actions:

1. File petition with request for immediate suspension

2. Request restraining order:

• Preventing executor from transferring assets
• Freezing bank accounts
• Prohibiting property sales

3. Request appointment of temporary administrator

• Takes control during litigation
• Protects assets
• Prevents further damage

4. Ex parte orders (in emergency):

• Without notice to executor if necessary
• When immediate harm imminent

Monitoring Executor Pending Removal

While petition pending:

Beneficiaries should:

• Monitor estate bank accounts (if have access)
• Document ongoing misconduct
• Preserve evidence
• Keep detailed records
• Communicate concerns to court

Executor may try to hide misconduct once removal petition filed.

Defending Against Removal Petition

If you're an executor facing removal:

Legitimate Defenses

1. No breach of duty

• Actions were reasonable
• Followed professional advice
• Made decisions in good faith

2. No harm to estate

• Delays didn't damage estate value
• Mistakes were corrected
• No loss occurred

3. Beneficiary lacks standing

• Petitioner has no financial interest
• Cannot be affected by executor's actions

4. Allegations are false

• Petitioner motivated by personal animosity
• Misunderstanding of executor duties
• Documents don't support claims

5. Problems have been resolved

• Executor has caught up on duties
• Issues corrected
• No ongoing concerns

When to Consider Resigning

If removal seems likely:

Voluntary resignation may be better:

• Avoids formal finding of misconduct
• May preserve eligibility for partial fees
• Reduces legal costs
• Ends stressful litigation
• Better for family relationships

Resignation doesn't eliminate:

• Duty to account
• Liability for past misconduct
• Potential surcharge

But: Shows good faith and may result in better outcome.

Frequently Asked Questions

How long does it take to remove an executor?

6-18 months typically, though emergency suspension can occur within weeks if immediate harm is shown.

Can we remove executor if they're named in the will?

Yes. Even if decedent chose them, executor can be removed for valid grounds. Will nomination doesn't grant immunity.

What if executor resigns before removal hearing?

Resignation may moot removal petition, but executor still liable for any misconduct that occurred.

Can executor be criminally prosecuted?

Yes, if theft or fraud occurred. Civil removal and criminal prosecution are separate proceedings.

Will removed executor have to pay back stolen money?

Yes. Court can order surcharge requiring repayment of misappropriated funds plus interest.

Can we remove executor just because we don't like them?

No. Must prove specific grounds under Probate Code Section 8502. Personality conflict alone insufficient.

What if multiple beneficiaries want executor removed but one doesn't?

Majority beneficiary opinion is evidence but not controlling. Court determines based on facts and estate's best interest.

Can executor remove themselves?

Yes. Executor can resign voluntarily by filing resignation with court.

Related Articles

Learn more about executor issues:

• California Executor Duties & Responsibilities - Complete checklist of duties executor must perform.

• Can Executor Sell Property Without Beneficiaries Approval - Understanding executor authority limits.

• Executor Fees California - Removed executors often forfeit compensation.

• How Long Does Probate Take in California? - Removal proceedings extend probate timeline.

• Contest Will California - Related litigation involving estate disputes.

Get Help Removing a Problem Executor

If an executor is mismanaging an estate, stealing assets, or refusing to perform their duties, you need experienced legal representation to protect your inheritance and remove the executor from office.

Call (818) 291-6217 to schedule a consultation at my Glendale office, or complete our probate questionnaire to discuss your removal case.

As a California probate litigation attorney serving Los Angeles County, I represent beneficiaries seeking to remove problem executors, help executors defend against baseless removal petitions, and work to protect estate assets during removal proceedings. Early action can prevent further harm to the estate.

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About the Author

Rozsa Gyene (State Bar No. 208356) is a California estate planning and probate attorney serving Glendale, Burbank, Pasadena, and throughout Los Angeles County. With extensive experience in probate litigation and executor removal cases, Rozsa provides strategic representation to protect beneficiaries' interests and hold executors accountable for misconduct.

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Disclaimer: This article provides general information about removing executors in California and should not be construed as legal advice. Every situation is unique. Laws and procedures change, and this article reflects California law as of January 2025. Consult with a qualified California probate attorney about your specific circumstances.