A recorded will is one that has been placed in the public record. In most cases, this occurs when it is filed with the local clerk of court or recorder's office. When the testator dies, the appointed executor is tasked with distributing assets from the estate to the beneficiaries according to the terms of the will. The process does not always go smoothly, however, and in some cases the executor may refuse or withhold a distribution.
If the estate is insolvent, the beneficiaries won't be entitled to any distributions. The executor's first duty in handling a will is to meet the liabilities of the deceased. These may include taxes, personal and bank loans, credit card accounts and mortgages that fall due on the death of the borrower. If liabilities exceed assets, there's no provision in the law for partial or apportioned payment to creditors, who are first in line for payment in full.
If a beneficiary makes a claim on the basis of a revoked will, the executor would have no authority to make a distribution if a new will doesn't provide for it. Any new will, however, must have language stating that all prior wills are revoked. In some states, the law automatically revokes wills under certain circumstances, such as when a will drawn up during a prior marriage leaves out the immediate family of the deceased. State probate laws generally allow the revocation of a will by intentionally destroying it. An individual usually has the right at any time to revise a will with a codicil, and add or delete beneficiaries at his discretion.
If a beneficiary has signed a disclaimer, he has waived his right to a bequest and has no legal grounds to demand a distribution of the assets he would normally be entitled to. Disclaimers often are useful for individuals who would prefer to pass their inheritance along to another individual, family member or charity. Within certain restrictions, the IRS allows the assets to pass on to a contingent beneficiary without levying a gift or inheritance tax on the assets. Disclaimers are binding documents, however, and once signed are legally enforceable.
Executors must follow the laws of the state when dealing with beneficiaries who are incarcerated, evasive or missing. The law may provide, for example, that all inherited assets go to compensate the victim of a crime, rather than to a beneficiary who has been convicted of that crime. Beneficiaries who refuse to cooperate with the probate process and intentionally evade the legal notification by the executor can also lose their right to an inheritance. In addition, state law may provide a limited period for the executor to find a missing beneficiary. After making a good-faith effort to find the beneficiary but failing to do so, the executor may be released to distribute that particular share to other beneficiaries.
Read More: The Rights of Beneficiaries to Wills
Beneficiaries have recourse if they believe an executor is intentionally, and unjustly, withholding their inheritance. After a will is filed in probate court, beneficiaries have the right to petition the court to address any grievances that arise. The court can require an accounting from the beneficiary, set a hearing on the matter, and/or impose sanctions if it finds the executor is not acting in the best interest of the estate. A second remedy would be to file a civil lawsuit naming the executor as the defendant. The suit must cite any statutes the plaintiff(s) claim were violated and estimate damages caused by the defendant's misconduct.
Founder/president of the innovative reference publisher The Archive LLC, Tom Streissguth has been a self-employed business owner, independent bookseller and freelance author in the school/library market. Holding a bachelor's degree from Yale, Streissguth has published more than 100 works of history, biography, current affairs and geography for young readers.