A will is a crucial document that everyone should have prepared to ensure their final wishes are honored. If you already have a will, it means you have chosen an executor to handle your estate. But what should you do if the executor does not follow the will? Whether you’re creating your own will or you’re a beneficiary of someone else’s, it’s important to be aware of potential complications in managing an estate. While we may hope that an executor will always respect the instructions in a will, the reality can be more complex.
If you don’t have a will or if someone you know has passed away without one, the state usually appoints a representative to handle the estate. Typically, this would be the deceased’s spouse. However, complications can arise when ex-spouses, children, and other relatives and friends feel they should be responsible for handling the estate instead. With a will, the representative is already designated: the executor.
The Role of an Executor
An executor is a person designated by the deceased to manage the estate. While you might assume that the assets in a will are automatically distributed, the process is actually much more involved. The probate process requires a single person to handle the estate, ensuring all debts are paid and properties are distributed under the supervision of a court. The executor takes on this responsibility, as named in the will, with the legal authority to access and distribute the estate as directed. However, there may be instances when the executor deviates from the instructions. So why does this happen, and what can you do if the executor does not follow the will?
What to Do If the Executor Fails to Comply
There could be multiple reasons why an executor fails to comply with a will, and some of these reasons may have valid justifications. For example, if a will contains ambiguous language or contradictory information, the executor may rely on their own judgment when making decisions. However, if you believe that the executor is not fulfilling the requirements of the will and intentionally disregarding the deceased’s wishes, there are steps you can take to have them removed.
A probate court oversees the probate process and has the authority to remove an executor. You have the right to petition the court for the removal of the executor, and once the court grants your request, a new representative will be appointed to handle the estate. It’s important to note that removing an executor is a complex legal process, and seeking qualified legal counsel is advisable if you plan to petition the probate court.
Contact Klenk Law Today
If you are a beneficiary contemplating what to do when an executor does not follow the will, feel free to reach out to Klenk Law for a complimentary consultation. Our team can provide guidance on the best approach to petition the probate court to remove the executor, and we can assist you in building a strong case to safeguard the proper execution of the will.
Don’t delay. If an executor fails to comply with the will, it disrespects the final wishes of the deceased. This should not be tolerated, and Klenk Law is here to help. Contact us today.
Executors’ Authority and Limitations
While an executor holds significant responsibilities such as paying debts, taxes, and notifying heirs, there are limitations to their powers. An executor cannot simply act without constraints. Here are their allowed actions:
- Locate the will
- Identify the deceased’s assets
- Inform relevant parties
- Continue necessary bill payments on behalf of the deceased
- Retain legal counsel specialized in estate matters
- Initiate probate proceedings with the court
- Distribute property to rightful heirs
However, an executor must not engage in the following actions:
- Assume control of the will before the testator’s death: Regardless of who the named executor is, they are not authorized to execute the will while the testator is still alive. The executor cannot determine how the assets will be handled if the testator is alive.
- Sign an unsigned will on behalf of the deceased: For a will to be legally valid, the testator must personally sign it before their death. The executor cannot sign the will on behalf of the testator.
- Sell assets for less than market value: An executor is obligated to treat the deceased’s assets as if they were their own. Selling assets, such as a house or vehicle, below market value to friends or family members is prohibited, as it would violate the executor’s fiduciary duty.
- Alter provisions in the will: An executor is not allowed to modify any provisions in the will that they may disagree with or dislike. If the executor wishes to include someone not mentioned in the will, the individual in question must contest the will based on fairness.
- Prevent heirs from contesting the will: It is within the rights of the deceased’s heirs to contest the will. Though no executor wants the complication of a will contest, they cannot prevent heirs from pursuing legal action.