What To Do if the Executor Does Not Follow the Will
A will is a document that sets out your wishes for how your property should be divided among heirs when you pass away. You can also use this legal document to name guardians for your minor children and appoint an executor for your estate.
When choosing an executor, you can select a friend or family member you trust to handle the job in a way that best honors your wishes. You can also choose to work with a probate lawyer or hire another type of professional to administer your estate.
No matter who you select as executor for your estate, you have an expectation that they will follow the will and carry out their duties in keeping with your instructions. If you’ve lost a loved one and feel that the executor of their estate is not following the will, you have some legal options.
Does an Executor Have to Follow the Will?
Yes, an executor’s job is to probate the will, and that includes following the instructions in the will when it comes to disbursing the assets of the estate.
The one exception is if there is a conflict between state estate laws and the provisions of the will. In these cases, the executor may need to act in accordance with the law, though it can be a good idea to consult a lawyer if there is any potential conflict. If a lawyer helped create the will in the first place, it should be compliant with state laws. However, if someone created a will in one state and moved to another state before passing away, the state laws governing their estate may make some parts of their will invalid. (It’s a good idea to update your will if you move to another state for this reason.)
When Will the Courts Intercede?
If you believe the executor is not following a will, you may be able to petition the court to appoint another executor. Typically, you must be a beneficiary, potential heir, or someone else with a valid interest in the matter to make this petition.
Once a petition is filed, the court schedules a hearing on the matter. You’ll have to make a case that the executor has acted in a way that supports their removal from the position. Some reasons courts may remove an executor and appoint a new one include the following:
- The executor has not upheld the wishes recorded in the will, such as not disbursing assets as the will instructs
- The executor has not done anything at all, and enough time has passed that there’s a reasonable expectation they should have handled some tasks of estate administration
- The executor has managed the estate very poorly, including actions such as unnecessarily wasting assets or stealing from the estate
- The executor has a compelling conflict of interest at this time that makes them not suitable for the role
- The executor has been convicted of a felony, which may make them ineligible for the role
The burden of proof is typically on the party filing the petition to demonstrate why the executor should be removed. The courts don’t typically remove an executor simply because there’s a minor disagreement or the beneficiaries think the executor is moving too slowly and they want their inheritance faster.
What If You Don’t Agree With the Will?
In some cases, the executor may be following the will but you don’t think it’s valid. Perhaps you believe there’s another, later will that should be followed or you don’t believe your loved one would have signed the will in question without being coerced.
In these cases, you wouldn’t challenge the executor. You would need to challenge the validity of the will. Contesting a will involves making a case in court for why the will is not valid; a probate lawyer can help you understand what your options are for making such a case. They can also file the necessary petitions and make the arguments on your behalf.
Can You Sue the Executor if They Don’t Follow the Will?
In addition to petitioning the courts to replace an executor, you might have a civil case if the executor didn’t follow the will and you can show you suffered damages related to that fact.
For example, if the executor failed to act in a responsible way when handling investments, you may be able to show that they were negligent in protecting the estate assets. If that resulted in a smaller inheritance, you might seek compensation for those losses. Or, if the executor stole from the estate or misused estate resources, you might seek compensation for what he or she took.
Whatever action you want to take in regard to an executor or a contested will, having an experienced estate attorney on your side can help increase the chances of a positive outcome. If you’re looking for help shoring up your own estate plans, need assistance with the estate administration process, or believe you have a case for replacing an executor, contact Karen Ann Ulmer, PC, attorneys at law to find out how we can help.
