What Happens If the Wishes of a Will Are Not Carried Out?

By Fraser Sherman
funeral, burial costs, the executor's duties

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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.

Signing Off

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.

About the Author

A graduate of Oberlin College, Fraser Sherman began writing in 1981. Since then he's researched and written newspaper and magazine stories on city government, court cases, business, real estate and finance, the uses of new technologies and film history. Sherman has worked for more than a decade as a newspaper reporter, and his magazine articles have been published in "Newsweek," "Air & Space," "Backpacker" and "Boys' Life." Sherman is also the author of three film reference books, with a fourth currently under way.

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