Can You Sue to Audit an Estate?

When someone has doubts about the accounting during the distribution of an estate, these issues are supposed to be addressed by the executor. If such concerns are pronounced enough, the executor is supposed to order an audit and pay for it out of the funds from the estate.

What happens, though, if the accounting for the estate still seems fishy? Can you sue, and who would you sue?

Estate Litigation

For an estate litigation lawyer, the primary cause of action in this sort of case comes from what's known as the fiduciary responsibility of the executor. As one of the named beneficiaries of an estate, you have a legally recognized right to know that everything in the estate has been accounted for and will be distributed honestly. The exercise of that right normally goes through the executor if one is serving in accordance with the will or an administrator if one was appointed by the court.

When Can You Sue?

A breach of fiduciary duties is always considered grounds for a lawsuit. If you have doubts about the accounting of an estate or the use of its funds, you can petition the court to either remove the executor or force them to provide a detailed accounting of what the audit showed. The cause of action is usually some combination of failures of honesty and the prudent handling of the assets and funds contained within the estate.

How Does the Court Handle the Suit? 

Estate litigation follows the rules of civil procedure. Your attorney and the executor's counsel will appear before the court to state their versions of events. The burden of proof rests with the plaintiff, and the standard of evidence is "the preponderance of the evidence." Some folks refer to this as the 51-Percent Standard, and it means you must show that your version of events is more likely than not the true one.

You'll have the right to demand discovery just like you would in a civil trial. This means the court may order the executor to turn over communications and documents, especially anything from an audit they conducted.

Will a Fresh Audit Happen?

The answer depends on what the original audit shows. A judge has the right to simply order the executor to follow what a clean audit shows and fix the problem. If there are shortfalls, those come out of the executor's pocket. A judge also may remove the executor and appoint an administrator. The court might also order a new audit and have the administrator continue the estate's distribution like normal.

Learn more about this process by contacting an estate litigation lawyer.