Q: Is settlement negotiation really necessary in probate litigation?
I am trying to remove a long (5+ yrs) inacting executor. Ever since he was appointed 5+ yrs ago he did not file anything, failed to collect assets, did not pay property taxes nor he maintained the property. I have partial ownership in the property and the remaining interest is the estate to be evenly distributed to us. Because the executor did not do anything, I intended to remove him and assess the damages before deciding whether buying him out is appropriate. However, after the petition is filed, my attorney insist me to negotiate with the executor settling the buyout first. I knew the executor will not step down to keep everything concealed (both executor and decedent are non-citizens) and I want him removed to expose his plots (executor has not close any probates). My thinking is if the property can really go to buyout, I will get him cash in FMV. If not, I will simply sell it. I really don't want to step into negotiation, especially the result is predicted. The estate is under$1M
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A:
Settlement negotiations can be valuable in probate litigation, but they aren't always necessary, especially when dealing with an executor who has clearly breached their fiduciary duties. Your situation involves multiple serious violations - failure to file required documents, neglect of property maintenance, and non-payment of taxes over five years.
Given these circumstances, you have strong grounds for executor removal without prior settlement talks. The court takes seriously the protection of estate assets and beneficiary interests, and your petition can highlight how the executor's inaction has potentially damaged the estate's value. Your desire to assess damages before considering buyout options is reasonable and follows logical business sense.
However, courts generally look favorably upon parties who attempt good-faith negotiations before proceeding with litigation. While your attorney's suggestion to negotiate first is understandable from this perspective, you have valid concerns about the executor's motives and history. You might consider documenting one good-faith attempt at settlement to demonstrate reasonableness to the court, but if the executor is indeed using their position to conceal information, proceeding directly with the removal petition could be your most effective path forward.
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