What Happens If a Will is Not Followed?

You have a lot to deal with when a loved one dies. You must go through the grieving process while still taking care of the details of the deceased person’s estate. If someone else is appointed as the executor or personal representative, you may worry about whether they will follow the instructions in the person’s last will and testament. If you discover they haven’t remained true to the wishes of the decedent, you may wonder if you have any recourse.

The Fiduciary Duty of the Executor

The executor is usually the person chosen by the deceased person when they wrote their will. It may be the spouse, an adult child, another family member or friend, or even their estate attorney. After the decedent’s death, the probate court will approve the person chosen and give them the authority to act on behalf of the estate.

It’s the executor’s fiduciary duty to handle the estate according to the terms of the will. They are expected to perform their duties to the best of their ability and in the best interest of the estate or face serious consequences.

Probate court oversees the handling of the estate, but it doesn’t follow every step of the executor. Certain tasks are outlined in the state’s probate code with deadlines.

The Duties of the Executor

Once the executor is approved by the court, they will need to let the heirs know that the estate is in probate. They must also notify the creditors as part of the probate process. Some states require the executor to publish the notice in a local newspaper. This allows the creditors to file claims against the estate. They have a limited time to do so, which is usually three to six months.

Paying Debts for the Estate

While the executor is waiting for the creditors’ claims to come in, they must secure all assets, including personal property, owned by the deceased person. They will take inventory of the assets of the estate, assigning a value to them. They may need to get an appraisal of real estate or other expensive items.

The executor will also need to file the final tax return for the estate. They will pay any income taxes, estate taxes, or other taxes owed by the decedent. The executor must also pay any ongoing bills during the probate process, such as utilities for any real property, medical bills, funeral expenses, and other outstanding debts.

Selling and Distributing Assets

Another task of the executor may be to sell assets if the money is needed to pay the bills or to distribute to the beneficiaries. If an asset was supposed to go directly to the heir, the executor would transfer the title after all debts have been paid.

Once all other tasks have been taken care of for the estate, the executor would distribute the remaining assets to the beneficiaries according to the terms of the will. After this has been completed, they would petition the court to close probate. At this point, their job is finished.

When the Executor Fails to Follow the Will

If a beneficiary believes the executor refuses to follow the will, they have the right to challenge the actions of the executor with the probate court. The court will decide if the executor is at fault and if they are to be held liable for their actions.

A Valid Reason to Deviate from the Will

The first priority of the executor isn’t the beneficiaries. Their legal duty is first to the creditors who must be paid before any of the estate can be distributed to the heirs. If there isn’t much or any estate assets left after paying the debts, the heirs may not receive their portion. However, this isn’t the fault of the executor and they can’t be held personally liable for the situation.

Poor Decisions and Mismanagement

Sometimes the executor makes poor decisions or mismanages the money from the estate property which results in a loss. The beneficiaries could hold the person liable as a breach of duty and petition the court to have the executor removed. The probate court would take immediate action to replace the executor with someone else if they failed to act in an appropriate manner.

Even if the executor made these mistakes in good faith, they can still be liable for the results. If they acted intentionally for their own interests over that of the deceased’s estate, the court would have grounds to dismiss them. For instance, they could sell certain property from the estate to themselves at a lower price than the value. The court could take legal action against them and require them to repay any losses to the beneficiaries.

Unclear Wording of the Will

Another reason the executor may deviate from the will is if the instructions are unclear. The decedent may name their heirs without leaving exact instructions for how to divide the inheritance. If one of the heirs challenges the actions of the executor in the distribution and can prove their interpretation, the court may accept their challenge.

Another instance is when the will goes against state law. For instance, the will gives the children of the decedent the assets with nothing left for the surviving spouse. State law may dictate that the spouse receive half of the estate. If they challenge the will, the court could award them part of the inheritance.

Delaying Distribution

State probate laws may provide deadlines for some of the tasks to be performed by the executor. In other situations, the laws may not include a deadline. In this case, the executor may take longer than what the heirs feel is reasonable.

If the heirs feel it is taking too long to distribute the assets, they can challenge it with a lawsuit in court. The court will need to decide whether the executor has a valid reason for the delayed timeline or if they are just delaying to prevent the heirs from receiving their inheritance.

If you feel that the executor hasn’t followed the will, you can talk to a probate law firm about whether you should file a lawsuit against them.