Hanover Park, IL asked in Probate for Illinois

Q: Can you petition to change executor of will & can home improv be paid from assets prior to probate?

Will from 1983 & beneficiaries would agree to whomever the change would be. Party in question is incapacitated but home needs work before can sell for probate.

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1 Lawyer Answer
Bryan R. Bagdady
Bryan R. Bagdady
  • Probate Lawyer
  • Oakbrook Terrace, IL
  • Licensed in Illinois

A: The short answer to your question is "yes."

The longer answer is that the executor's duty is to "carry out the wishes of the decedent," acting in the utmost good faith to protect the interests of the beneficiaries, "exercising at the very least that degree of skill and diligence any reasonably prudent person would devote to [his] own personal affairs." Will v. Northwestern University, 378 Ill. App. 3d 280, 291-92, 881 N.E.2d 481, 494 (2007). "[T]he beneficiaries of an estate are intended to benefit from the estate and are owed a fiduciary duty by the executor to act with due care to protect their interests." Gagliardo v. Caffrey, 344 Ill. App. 3d 219, 228, 421, 800 N.E.2d 489, 496 (2003). Ultimately, the executor's duty is to administer the assets of the estate so that any debts or obligations are paid and the beneficiaries receive their just and proper benefits in an orderly and expeditious manner. Northwestern University, 378 Ill. App. 3d at 291-92, 881 N.E.2d at 494. In addition, an executor owes a duty of full disclosure to the beneficiaries under the testator's will. See In re Estate of Talty, 376 Ill. App. 3d 1082, 1089, 877 N.E.2d 1195, 1204 (2007). ¶ 29 On petition of an interested person or on the trial court's own motion, the court may remove an executor from office. 755 ILCS 5/23-2(a) (West 2010).

Section 23-2 of the Probate Act (755 ILCS 5/23-2(a) (West 2010)) sets forth the grounds for removal:

"(1) the representative is acting under letters secured by false pretenses;

(2) the representative is adjudged a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code or is adjudged a disabled person;

(3) the representative is convicted of a felony;

(4) the representative wastes or mismanages the estate;

(5) the representative conducts himself or herself in such a manner as to endanger any co-representative or the surety on the representative's bond;

(6) the representative fails to give sufficient bond or security, counter security or a new bond, after being ordered by the court to do so;

(7) the representative fails to file an inventory or accounting after being ordered by the court to do so;

(8) the representative conceals himself or herself so that

process cannot be served upon the representative or notice cannot be given to the representative;

(9) the representative becomes incapable of or unsuitable for the discharge of the representative's duties; or

(10) there is other good cause."

"[A]n executor should not be removed for errors or omissions which are satisfactorily explained, errors of judgment not amounting to malfeasance, or error in the construction of a will in the absence of wilful misconduct, or bad faith." In re Estate of Breault, 29 Ill. 2d 165, 180, 193 N.E.2d 824, 832 (1963). Further, an executor may not be removed merely because beneficiaries of the will might have handled the estate differently and prefer a different executor. Estate of Kirk, 242 Ill. App. 3d at 79, 611 N.E.2d at 544. ¶ 30.

I hope this helps. The executor is charged with making decisions concerning the real property and to act in the best interest of the estate. The executor is statutorily empowered to take possession, administer and grant possession to the decedent's real estate. If the home needs work before putting it on the market, and such action is in the best interest of the estate, then the executor may make such improvements. If there is doubt concerning the value of such work, then the executor should seek court approval, especially if the work involves substantial sums of money.

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