Breach of Fiduciary Duty: How to Remove and Sue an Executor or Personal Representative in Massachusetts

When a family member or professional is appointed as the Personal Representative (Executor) of an estate, they are handed immense power over the deceased's bank accounts, real estate, and personal property. With this power comes a strict legal obligation to act with absolute honesty and prioritize the beneficiaries. This is known as a fiduciary duty.

Unfortunately, power corrupts. Some executors treat the estate like a personal piggy bank, intentionally delay payouts, or sell family property to their friends for pennies on the dollar. If you are a beneficiary dealing with a rogue executor in Massachusetts, the law allows you to fight back. This guide explains how to remove a bad executor, how to demand a formal accounting of missing money, and how an attorney from our US Lawyer Directory can help you hold them personally liable.

Understanding Fiduciary Duty Under the MUPC

In Massachusetts, executors are governed by the Massachusetts Uniform Probate Code (MUPC). According to Mass. Gen. Laws ch. 190B, § 3-703, a Personal Representative is a fiduciary who must observe the standards of care applicable to a trustee. They must act impartially, transparently, and solely in the best interest of the estate.

If they fail in this duty, they can be removed by the court under Mass. Gen. Laws ch. 190B, § 3-611. More importantly, under Mass. Gen. Laws ch. 190B, § 3-712, a Personal Representative can be held individually liable for damages or losses resulting from their breach of fiduciary duty. The precedent set in Matter of the Estate of Moretti, 69 Mass. App. Ct. 642 (MA Appeals Court 2007) reinforces that courts will severely penalize executors who betray the trust placed in them.

Common Examples of Executor Misconduct

Executors rarely announce that they are stealing. Misconduct usually starts with subtle administrative failures and escalates into blatant theft.

Commingling Estate Funds with Personal Accounts

An executor must open a dedicated estate bank account with its own Tax ID number. If the executor deposits a check belonging to the deceased into their own personal checking account, they are 'commingling' funds. Even if they claim they were just holding it for safekeeping, this is a massive breach of fiduciary duty and a fast track to removal by a probate judge.

Selling Estate Real Estate Below Market Value to Friends

Real estate is often the most valuable asset in an estate. If the executor sells the family home in Quincy or Worcester to a friend, a business partner, or themselves for significantly less than the fair market value, they are stealing equity from the beneficiaries. The court can void this sale or force the executor to pay the difference out of their own pocket.

Self-Dealing and Hidden Transfers

Self-dealing occurs when the executor creates a conflict of interest to benefit themselves. For example, if the executor owns a landscaping company and hires their own company to maintain the estate's property at triple the normal rate, they are self-dealing. Any transaction that benefits the executor personally must be scrutinized and generally requires court approval or the consent of all beneficiaries.

Unreasonable Delays in Distribution

While probate takes time, a lazy executor can cause financial harm by letting a vacant property rot, failing to pay estate taxes on time (resulting in IRS penalties), or simply refusing to distribute the final checks because they are angry at a sibling. If an executor refuses to close the estate after a reasonable time (usually over a year), beneficiaries can petition the court to force action.

Demanding an Accounting and Seeking Surcharges

If you suspect foul play, your attorney will first demand an accounting. The executor must file Form MPC 853, Massachusetts, Probate and Family Court, Account of Personal Representative. This document forces them to list every single penny that entered and left the estate under the penalty of perjury.

If the accounting shows missing money or unjustified expenses, your attorney will file an objection to the account and ask the judge for a 'surcharge.' A surcharge is a court order demanding the executor repay the estate from their own personal funds for the money they wasted or stole.

Step-by-Step Process for Removal

Removing an executor requires aggressive litigation in the Probate and Family Court.

Step 1: File the Petition for Removal

Your attorney will file Form MPC 265, Massachusetts, Probate and Family Court, Petition for Removal of Personal Representative at the court where the estate is being probated, such as the Norfolk Probate and Family Court, Canton. The petition must state specific legal reasons for removal.

Step 2: Request a Special Administrator

While the removal case is pending, your attorney can ask the judge to appoint a temporary 'Special Administrator' to take control of the bank accounts and freeze the real estate, preventing the rogue executor from stealing any more money during the trial.

Step 3: Evidentiary Hearing

The judge will hold a hearing where you will present bank records, real estate appraisals, and testimony proving the executor's misconduct. If the judge agrees, the executor is fired, and a successor is appointed.

How Much Does it Cost in Massachusetts?

Suing an executor is a serious legal endeavor.

How Long Does the Process Take?

If the executor realizes they have been caught, they may resign voluntarily in a few weeks. However, if they deny wrongdoing, obtaining bank records and litigating the removal can take 6 to 12 months. Freezing the assets with a Special Administrator can usually happen much faster, sometimes within a few days of filing.

Frequently Asked Questions (FAQ)