When someone writes a will, she can name an executor to carry out her written wishes. After death, the executor settles the estate's finances, then distributes the remaining assets to the heirs. An executor has a fiduciary duty to make careful decisions and put the heirs' interest ahead of his own. The heirs may be able to replace an executor who ignores the will's instructions, but sometimes there are sound reasons for the executor's choice to violate the stated intentions of the deceased.
Debts vs Inheritance
The executor's first priority isn't to carry out the will's instructions but to pay the estate's debts. That includes filing a final income tax return for the decedent as well as estate tax returns, and settling any unpaid bills with the creditors. If this eats up some or all of the estate's funds, some heirs may not receive the amount expected. That's unfortunate, but it's the executor's obligation to put creditors first, according to the American Bar Association. She should, however, be willing to show the heirs her accounting to justify her decisions.
Deviating From the Will
Sometimes the executor's reasons for deviating from the will are unacceptable. An executor who mismanages the estate and loses money, for instance, has breached his fiduciary duty. The intended beneficiaries can present the evidence to the probate court and request a replacement executor. If the executor exploits his position -- sells himself estate property at a lowball price, for example -- that's also grounds for dismissal. If the executor gets a direct order from the probate court and ignores it, the court will almost certainly dismiss him.
Problems With the Text
Sometimes the problem isn't with the executor but the will. Suppose the decedent left everything to the children but state law guarantees the spouse a minimum inheritance. If the spouse challenges the will and wins, the court will require the executor deviate from the will. The American Bar Association says some wills aren't written clearly, leaving the executor guessing at the decedent's wishes. An heir who disagrees with the executor's interpretation can complain to the probate court or ultimately sue the executor for alleged losses.
State law sets the requirements for closing the estate. In any state, before the executor can sign off on her duties for good, she'll have to distribute the assets. Failing to make the bequests could be grounds for a lawsuit. State law may not provide a deadline for distribution, however. The Capehart Scatchard law firm says, for instance, that in New Jersey, the executor can take as much time as seems reasonable. It may take a lawsuit to decide whether she's taking too long.
- The Florida Bar Journal: Understanding Fiduciary Duty
- American Bar Association: Guidelines for Individual Executors and Trustees
- Nolo: Removing the Executor of a Will
- Nolo: When an Executor Should Take a Second Look at a Will
- Colorado Bar: So now You Are a Personal Representative
- Capehart Scatchard: Closing the Estate
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