An executor, also called a personal representative, is a person appointed in a will to administer a decedent's estate. An executor must give a decedent's personal items to his heirs according to the terms of the will. If no will exists, the decedent's estate is classified as intestate. Intestate estates have court-appointed executors who must follow the state's intestate succession statutes when dividing items among legal heirs.
Honoring Last Wishes
Generally, an executor has legal authority to carry out a decedent's last wishes. A probate judge issues an order granting the executor full power to accomplish the instructions left in a decedent's will. This means an executor does not need an heir's approval to give away personal items according to the terms of the will. An heir, however, may object in probate court if the executor varies from the decedent's wishes.
Read More: What Happens If the Wishes of a Will Are Not Carried Out?
Sometimes a will may not specifically address certain personal items or family heirlooms. For example, Aunt Mary dies and leaves a diamond wedding ring. She fails to leave it to anyone in particular. Because the ring is both valuable and sentimental, her heirs may argue over who should receive it. Generally, an executor may settle such a dispute by selling the item for fair market value. The proceeds are then divided according to the terms of the will. An executor is typically empowered by a court to make such a sale without seeking permission from the heirs.
Decedents who die intestate have failed to express their last wishes in writing. Courts encourage executors of intestate estates to work with the heirs-at-law when distributing personal items. If the legal heirs are not able to reach an agreement for division, the executor should not attempt to choose among heirs. The executor should sell the items, then divide the proceeds according to the state's intestate succession statutes. The executor generally does not need permission from the legal heirs to sell disputed personal items.
An heir who believes an executor is giving away a decedent's personal items in a manner that's not in accordance with a will or intestate succession statutes should file a motion with the probate court. An heir may demand, through a motion, the executor follow the decedent's last wishes or be replaced by another executor. An heir may also bring a general will contest to stop the executor from giving away estate property. A will contest entails broad allegations such as the will is fraudulent or was signed under duress. A will contest would prohibit an executor from giving away a decedent's personal items until the heirs and court flush out the allegations in the contest claim.
Maggie Lourdes is a full-time attorney in southeast Michigan. She teaches law at Cleary University in Ann Arbor and online for National University in San Diego. Her writing has been featured in "Realtor Magazine," the N.Y. State Bar's "Health Law Journal," "Oakland County Legal News," "Michigan Probate & Estate Planning Journal," "Eye Spy Magazine" and "Surplus Today" magazine.