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What to Do If the Executor Does Not Follow the Will

What to Do if the Executor Does Not Follow the Will

A will is an important document that everyone should have prepared when you die, and if you already have a will prepared, it means you already have a designated executor to handle your estate – but have you ever wondered what to do if the executor does not follow the will? Whether you’re preparing your own will, or a beneficiary in someone else’s, you should always be prepared for some complications when handling an estate. While we might hope that an executor will always honor the instructions in a will, it’s not always so clear.

If you don’t have a will, or someone you know has passed away without one, it’s usually up to the state to choose a representative to handle the estate. This might usually be the deceased’s spouse, but in the case of ex-spouses, children, and other family and friends who feel they should handle the estate instead, things get complicated. With a will, this representative is already designated: the executor.

What Does an Executor Do?

An executor is a person who has been chosen by the deceased to handle the estate. You might expect that the assets in a will are automatically split up and distributed, but it’s actually a much more involved process. An estate must be handled by a single person, with every debt paid and every property distributed piece by piece under the supervision of a court. This is called the probate process, and it happens under the watchful eye of a probate court.

That single person that manages the estate during the probate process is the executor. They are named in a will to handle the distribution of the assets of the deceased, and they have the legal authority to access and distribute the estate as dictated in the will. This is a great responsibility, and while the executor should always respect what the will says, sometimes they might deviate from the instructions. Why would they do this? And do you know what to do if the executor does not follow the will?

If the Executor Does not Follow the Will

There might be a few reasons an executor doesn’t follow a will – and some might be understandable. For example, if a will is ambiguous, if there is unclear wording or contradictory information, the executor might act according to his or her own judgement. However, if you feel an executor is not satisfying the requirements of the will, and is actively defying the wishes of the deceased, there are steps you can take to have them removed.

A probate court monitors the probate process, which means the probate court can also have an executor removed. You can petition the court to have the executor removed, and once the old executor is removed, the court will find another representative to handle the estate. Having an executor removed is a complicated legal process, and it’s always best to be prepared with qualified legal counsel if you intend to petition the probate court.

Contact Klenk Law Today

If you’re a beneficiary who is wondering what to do if an executor does not follow the will, you can reach out to Klenk Law for a free consultation. We can provide information on how best to petition the probate court to have the executor removed, and we can help you build a case to put the will in better hands.

Don’t delay. If an executor does not follow the will, the last wishes of the deceased are not being honored – and that shouldn’t happen to you, or anyone. Contact Klenk Law today.

What Executors Can and Can’t Do

The executor of a will holds many responsibilities, including paying debts and taxes and notifying heirs about the death. Although an executor has a lot of power, he or she can’t just do anything. There are limits on what this person legally can and can’t do. Here are the things an executor is allowed to do:

  • Find the will
  • Identify the deceased’s assets
  • Notify all the appropriate parties
  • Continue to pay deceased’s necessary bills
  • Hire a skilled estate lawyer
  • Open probate with court
  • Distribute property to heirs

What Isn’t an Executor Allowed to Do?

An executor does not have absolute rule. He or she is not allowed to do anything that harms the beneficiaries’ best interests. 

  • Take Charge of the Will Before Testator Dies: No matter who is named the executor of an estate, that person is legally prohibited from carrying out the will while the testator is still alive. An executor does not have the right to decide how the assets will be handled if the testator is still living.
  • Sign an Unsigned Will for the Deceased: In order for a will to be valid, the testator must sign it before his or her death. The executor is prohibited from signing the will on the testator’s behalf.

  • Sell Assets for Less Than Market Value: An executor of an estate is expected to treat the deceased’s assets as if they were his or her own. The executor can’t just sell the assets, whether it is a house or vehicle, for less than market value to a friend or family member. Doing so would oppose the executor’s fiduciary duty.
  • Alter Provisions in the Will: An executor also is not allowed to change provisions in the will that he or she may not like. For instance, if an executor feels bad that a sister was not included in a will, he or she can’t just name her in the document. The sister would have to contest the will if she feels it is unfair.

  • Prevent Heirs from Contesting the Will: No executor wants to hear that the deceased’s heirs are contesting the will. It will drag the process on and make the executor’s job more difficult. However, it is perfectly within their right to contest the will and an executor can’t do anything about that.

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Peter Klenk ESQ is a thoughtful and capable attorney who we work with on estate planning issues. His firm recently provided us with new Wills, Power of Attorneys and our instructions regarding major health issues. These documents are important for estate and life planning. Peter and his team are masters in the complexities of Estate Law. We highly recommend Peter and his Associates to provide thoughtful advice and outstanding work on these complex issues of the law. Make sure your estate planning documents are up to date, and Peter can be relied on to do an excellent job. Well done Peter!

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