When creating your last will and testament, one of the most important tasks is selecting the executor of the will. As part of your estate planning, you may elect to work with an attorney to choose the executor, the person who will have a fiduciary duty to sort out your finances after your death and will be responsible for the distribution of your remaining assets. Essentially, the executor will act as an extension of you and your wishes, but from a legal standpoint.
Can an Executor Decide ‘Who Gets What’?
No, the Executor of your will cannot just decide who gets what. Among other tasks, the executor is primarily responsible for giving away your assets as per the instructions in the will. Only in scenarios where the person who made the will, called the testator, did not give clear instructions, will the executor have the power to make a decision.
For example, if your family member creates a will and testament that specifically says the company they own should be run by their first born or liquidated with the assets divided amongst their children, but didn’t give any information about what should happen with his boat, it may fall to the executor to decide whether to give the boat to one of the family members or sell the boat and divide the assets among the family members.
What are the powers of the executor of a will?
The powers of an executor of wills typically have to do with:
- Managing your assets and your property until such time as they have been distributed to any of your beneficiaries. For example, if you have two houses that you plan to give to each of your two children when you pass, your executor is responsible for overseeing and taking care of both houses until such time as they legally hand them over to your children.
- Supervising the distribution of your assets. For example, if you own a business, an antique coin collection, and an art collection, and you have specifically decided that the art should be donated to museums and the coins should be divided among any of your heirs, the executor is responsible for distributing all assets as you have instructed. However, anything that you did not specifically lay out as part of the will must still be distributed within the legal confines of your last will and testament.
- Handling asset inheritance as laid out in your will.
- Validating your last will and testament if someone challenges its authenticity through Probate Court.
- Paying for any taxes, debts, or ongoing expenses related to your assets.
You need to have the right format for last will and testament while drafting your will to prevent any possible problems and state clearly the rights of the executor.
How Much Power Does an Executor Have Over the Estate?
The executor has a great deal of power over the estate because they are legally responsible for making the majority of decisions related to the distribution of any assets within the estate.
This can include:
- Hiring a lawyer to help with the administrative aspects of the estate;
- Collecting all of the estate assets and distributing them according to the will;
- Selling any property under the estate; and
- Paying the estate debts and any taxes.
An Executor can choose not to act as executor, even if they were the person named in your will as the executor. If this occurs, the court will appoint a new executor who will have the same power over the estate as the original executor named.
Does the executor of a will have the final say?
Unless an item is contested in court, the executor typically has final say because they are following the wishes of the deceased. Therefore, they are not necessarily making the decisions but rather implementing the instructions they were provided in the will. If an aspect of the will is contested and there is a dispute, then the court will have the final say rather than the executor.
What Can’t an Executor Do?
There are many things an executor cannot do. Legally, the executor has a fiduciary duty to execute all elements of the will in accordance with the law and to the best of their ability. After someone is deceased, the executor cannot legally change the names of the beneficiaries in the will. So if you or your grandchildren were named as beneficiaries, there is nothing the executor can do to change the will.
Similarly, the executor cannot stop any beneficiaries from contesting the will. If a beneficiary does not believe that the will was accurate or they wish to challenge elements of the will, they can file a dispute through probate court and the executor cannot stop them from doing so.
The executor also cannot sign the will on behalf of the deceased. If your family member passed away without signing their will, even if the unsigned will stipulates who the executor should be, it will not legally hold up in court because they did not sign it.
Finally, the executor cannot begin distributing assets until such time as the person who wrote the will has passed away.
What Happens if There Is a Dispute?
Disputes can occur in many situations, such as a family disputing the way assets are being divided according to the will. Part of the executor’s responsibilities include overseeing the distribution of assets as laid out in the last will and testament, but there may be estate debts which must be paid from the existing estate assets. In some cases, family members of the deceased may not realize these payments are taking place or that they are legally required. Similarly there may be claims from creditors against a property that was otherwise designated to be inherited by one of the family members. Probate process deems the management of these debts falls to the executor and must be paid before assets can be distributed.
When you purchase a home, ownership of that property transfers to you through what is legally called a deed. This is a piece of paper...
Disputes can also occur when the last will and testament has a distribution of assets that does not make sense to the family. For example, if the last will and testament was recently changed after the deceased family member began a new relationship with their in-home care nurse and named them the beneficiary of their assets, it might be questioned by the family and subject to dispute.
Contesting an executor of a will
There are other situations where a dispute may occur, and this is often with regard to contesting an executor of the will. When a family member passes away and an Executor is named, the family can hire a lawyer to seek Court approval over the validity of the will or over the validity of the executor of the will. For example, this type of dispute may occur if a relatively new friend of the deceased suddenly becomes the executor.
It is quite common for an executor of a will to also be an heir or beneficiary of the will in question. Typically, a family member is selected, such as a spouse or the children of the deceased, to serve as executor, and will likely also be a beneficiary of the will and testament. However, there is rarely a conflict of interest because the executor is legally beholding to their fiduciary duty, no matter what the will deems as the assets they receive as an inheritance. Overall, the executor, whether they are a family member or not, is responsible for ensuring the assets are assessed and distributed according to the will. However, if there is a dispute, the final decision falls to the Probate Court.