New Jersey is considered a probate friendly state since the executors are not required to

obtain court approvals for most actions. However, if the executor is not complying with
state law, in NJ the only recourse a beneficiary has is to file a complaint and rder to
!how "ause.
#rust $ %states
"ompelling an &ccounting &nd 'emoval of an %state %xecutor
(y )enneth *ercammen
+nder New Jersey ,aw, the person selected as an executor of a will has numerous legal
responsibilities following the death of the person who signed the will. -rimarily, they
have a duty to probate the will, liquidate assets, pay bills and taxes, file all necessary
court and tax returns, and then distribute the assets to beneficiaries. .f there is no will,
state law determines which relatives can petition the surrogate to be appointed as
/administrator/ of the estate.
.n New Jersey, the court and surrogate do not supervise how an executor or administrator
handles the estate. &n executor occasionally fails to timely carry out their duties. #hey
may fail to file tax returns, fail to 0eep records, misappropriate funds or ignore
instructions under the will. .f a beneficiary is not satisfied with the handling of the estate,
they can have an attorney file a complaint in the superior "ourt to compel accounting,
remove the executor, compel filing of tax returns and see0 other relief.
#he new probate statute of NJ made a number of substantial changes to the provisions
governing the administration of estates and trusts in New Jersey.
+nder the +nited !tates !upreme "ourt "ase, #ulsa -rofessional "ollection !ervices,
.nc., v. Joanne -ope, %xecutrix of the %state of H. %verett -ope, Jr., 1eceased, 234 !."#.
2563 728449, the personal representative in every estate is personally responsible to
provide actual notice to all 0nown or /readily ascertainable/ creditors of the decedent.
#his means that is the executor:s responsibility to diligently search for any /readily
ascertainable/ creditors.
.n lieu of a formal accounting the beneficiaries will usually be requested to sign a release
and refunding bond. .f a beneficiary has evidence of misappropriation, they should as0
the executor for an informal accounting prior to signing the release and refunding bond.
"omplaint for &ccounting
& "omplaint for &ccounting is filed in the superior court probate court to request on
accounting, removal of the current executor and selection of a new person to administer
and wrap up the estate. !ee 'ule 6;4<=2.
& signed certification of one or more beneficiaries is needed. .n addition, an rder to
!how "ause is prepared by the attorney. #he rder to !how "ause is submitted to be
signed by the >udge directing the executor to file a written answer to the complaint, as
well as appear before the court at a specific date and time. #he NJ Judiciary website has a
model form rder to !how "ause.
&s with a litigated court matter, trials can become expensive. "ompetent elder
law?probate attorney may charge an hourly rate of @A<B=@633 per hour, with a minimum
retainer of @5,333 needed. Cost attorneys require the retainer to be paid in full up front.
#he plaintiff can request the following;
729 #hat the named executor be ordered to provide an accounting of the estate to plaintiff.
7A9 1efendant executor be ordered to provide an accounting for all assets of decedent
dated five years prior to death that defendant may have administrated through a power of
attorney.
759 -ayment of plaintiffDs attorneyDs fees and costs of suit for the action.
769 1eclaring a constructive trust of the assets of the decedent for the benefit of the
plaintiff and the estate.
7B9 #he executor may be removed as the executor?administrator of the estate and that the
plaintiff may be named as &dministrator ".#.&. or administrator of the estate.
7E9 #hat the executor be barred from spending any estate funds, be barred from paying
any bills, be barred from ta0ing a commission, be barred from writing chec0s, be barred
from acting on behalf of the estate, except as specifically authoriFed by superior court
order or written consent by the plaintiff. #he statue on removing the executor for cause is
NJ!& 5(;26=A2.
b>ect to %xecutor:s "ommissions
+nder NJ!& 5(;24=2 et seq., executors, administrators and other fiduciaries are
entitled to receive a commission on both the principal of the estate, and the income
earned by assets.
However, if you have evidence that the executor has breached their fiduciary duties or
violated a law, the superior court accounting complaint can request that the commissions
be reduced or eliminated.
"ompel #he !ale of 'eal %state and ther -roperty
ccasionally, a family member is living in a home owned by the decedent. #o 0eep
family harmony, often this family member is permitted to remain in the home
temporarily. However, it may later become clear that the resident has no desire on
moving, and the executor has neither an intention to ma0e them move nor to sell the
house. #he remedy a beneficiary has can be to have the attorney include in the superior
court complaint a count to; 729 remove the executorG 7A9 remove the tenant and ma0e
them pay rent to the estate for the time they used the real property since death without
paying rentG 759 compel the appraisal of the home and, thereafter, the sale of the property
and 769 ma0e the executor reimburse the estate for the neglect or waste of assets.
'emoval for cause
7 of %xecutorHH
#he court may remove a fiduciary from office when; 7HH
a.H &fter due notice of an order or >udgment of the court so directing, he neglects or
refuses, within the time fixed by the court, to file an inventory, render an account or give
security or additional securityG7HH
b.H &fter due notice of any other order or >udgment of the court made underHits proper
authority, he neglects or refuses to perform or obey the order orH>udgment within the
time fixed by the courtGH or7HH
c.HHe has embeFFled, wasted or misapplied any part of the estate committedHto his
custody, or has abused the trust and confidence reposed in himGHor7HH
d.HHe has removed from the state or does not reside therein and neglects
orHrefuses to proceed with the administration of the estate and perform the dutiesHand
trust devolving upon himGHor7HH
e.HHe is of unsound mind or mentally incapacitated for the transaction of
businessGHor7HH
f.Hne of two or more fiduciaries has neglected or refused to perform his II
s duties or to >oin with the other fiduciary or fiduciaries in the administration of the estate
committed to their care whereby the proper administration and settlement of the estate is
or may be hindered or prevented.
.n addition, /a court may invo0e its equity powers to remove Jan executorK./ .n re 1u0e,
53B N.J. !uper. 634, 654 7"h. 1iv. 288B9 7citing .n re )oretF0y, 4 N.J. B3E, B53 728B299.
However, a >udge should be particularly reluctant to remove a fiduciary chosen by the
decedent, "onnelly v. Leisfeld, 26A N.J. %q. 63E, 622 7%. $ &. 28649, and the foremost
concern when such an act is contemplated should be whether the executorDs continued
service would be detrimental to the estate. Lolosoff v. "!. ,iquidating #rust,
HM-%',.N) /http;??lawlibrary.rutgers.edu?cgi=bin?caselin0.cgiNciteOA3BPA3N.J.!uper.
PA3568/
A3B N.J. !uper. 568
, 5E3 7&pp. 1iv. 284B9
#he critical question is /whether the circumstances are such that the continuance . . . in
office would be detrimental to the JestateK and require the court to grant relief./ #hus,
mere friction between an executor and beneficiaries is not a ground for removal unless
the relationship is li0ely to /interfere materially with the administration/ of the estate.
%state litigation is often acrimonious, but the removal of an executor appointed by the
decedent is generally to be avoided.
/Qenerally, in order for friction or hostility between the beneficiary and trustee to form
the basis for removal, there must be a demonstration that the relationship will interfere
materially with the administration of the trust or is li0ely to do so. #here also must be
proof that the friction or hostility arose out of the trusteeDs behavior. !tarr v. Liley, 48
N.J. %q. <8, 83 7"h. 28249
New Jersey is considered a probate friendly state since the executors are not required to
obtain court approvals for most actions. However, if the executor is not complying with
state law, in NJ the only recourse a beneficiary has is to file a complaint and rder to
!how "ause.
-lanning can only be done while someone is competent and alive. Ca0e sure your
assets can be passed directly to your loved ones.
*ercammen is a trial attorney in %dison. He often lectures for the New Jersey !tate (ar
&ssociation, New Jersey .nstitute for "ontinuing ,egal %ducation and Ciddlesex "ounty
"ollege on personal in>ury, criminal?municipal court law, drun0 driving and contested
probate estate administration.
http;??lawlibrary.rutgers.edu?cgi=bin?caselin0.cgiNciteOA3BPA3N.J.!uper.PA3568
http;??lawlibrary.rutgers.edu?cgi=bin?caselin0.cgiNciteOA3BPA3N.J.!uper.PA3568
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