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.
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?
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.
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.
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:
An executor does not have absolute rule. He or she is not allowed to do anything that harms the beneficiaries’ best interests.
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Peter Klenk & Associates is my go-to firm for estate planning and advice in probate and estate administration. Peter and his attorneys are top-notch and exceptionally responsive. Peter has the knack of being able to explain extremely complex tax and estate planning issues in a manner that clients are easily able to understand and comprehend allowing them to confidently make important decisions.
Klenk Law is an exceptional practice. Their fine lawyers and staff team up to produce excellent results for their clients. They excel at explaining the often cryptic laws and policies that govern estate planning right down to the complexities of the various "trust" frameworks. Peter himself manages each client together with his great team, and he has a rare quality to be both a walking encyclopedia of planning minutia and also one of the most likable lawyers I have ever had the pleasure of dealing with. He is truly generous in intellect and in his personal approach to getting the "big picture" for complex family structures. I trust him implicitly to help me make the right choices for the future. In short, Klenk Law is a gem of a firm.
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