A will is a document that dictates how a person’s property and assets are to be distributed once they die. It is an essential part of estate planning, partially because many people choose to name an executor in their will. A will executor is the person chosen by the will’s creator to manage their estate once they have died. This person may also be referred to as a personal representative, administrator, or the estate’s executor. A will’s executor will ensure that the decedent’s (the person who passed away) property is given to the rightful beneficiaries, among other duties.
If the decedent left a legally valid will, the executor is generally named by the decedent, although in some cases, the court will appoint an executor. An example of this would be when the estate’s owner died without a will, leaving the property to go through the probate process. However, the duties and obligations of the executor will remain the same in either case. Additionally, a person may apply to become an estate’s executor in some specific instances.
Although the law does not technically require that the executor of an estate be a legal or financial expert, the executor is generally required to fulfill many legal and financial duties. Such duties include having a fiduciary duty to the decedent’s estate.
What Are Some of the Duties and Obligations of a Will Executor?
The basic duty of a will’s executor is to make sure that all of the decedent’s taxes and debts are paid. Then, they are to distribute what is left to the appropriate and named beneficiaries. Part of the executor’s fiduciary duty is to act in a manner of good faith and impartiality. What this means is that the executor must take reasonable steps to fulfill whatever instructions were left by the decedent in regards to their property and assets. Additionally, the will’s executor has a duty to refrain from certain types of actions, such as using the decedent’s assets for their own personal gain or profit.
In addition to the duty to behave in a specific way, a will’s executor has many other jobs and tasks in order to fulfill their duty. Some examples of these include:
- Identifying all of the decedent’s property and bank account funds;
- Earmarking the property that is to be distributed;
- Identifying and contacting specific beneficiaries as well as heirs named in the will;
- Resolving any tax debt or other debts, as well as financial disputes about the property;
- Making arrangements for probate proceedings if necessary; and
- Supervising the distribution of property and other assets to the named beneficiaries.
The will’s executor also has some ethical obligations to the decedent’s beneficiaries. Such obligations could include:
- Being open and honest about the estate when communicating with the beneficiaries;
- Refraining from seeking personal gain or profit from their position, as previously mentioned; and
- Exercising sound and reasonable judgment in regards to making legal and financial decisions left to them by the decedent.
Additionally, the will’s executor is bound by any specific instructions contained within the will itself. If the executor has not been court appointed, it is very likely that the executor is someone that the decedent trusted and respected. They should act accordingly and do everything within their power to distribute the decedent’s estate according to their final wishes.
Can I Sue a Will Executor?
The will executor has the responsibility to the decedent as well as the beneficiaries to determine what the decedent’s intentions were with regards to their property. Sometimes, an executor may make a critical error when distributing the estate. Doing so could expose them to legal liability, if their error causes major loss to another person, such as one of the beneficiaries.
An example of a major violation is when an executor attempts to skew the wording of a will with the intention of obtaining personal gain. This is a serious violation that could lead to a lawsuit, and potentially criminal consequences as well. Failing executor duties could be considered a breach of contract, and may be legally prosecuted and remedied as such.
If you are a beneficiary or other interested party to a will, and you suspect that the executor has breached their duties and wish to file a lawsuit against them, you will need to start by documenting what you believe the violation involves. Some examples of appropriate actions you may take include:
- Reviewing the will and other documents in order to determine what your rights are, or the rights of the affected parties may have been;
- Writing an account of any statements or actions that the executor made or took that could be used as evidence against them; and/or
- Having your attorney review the will in order to determine whether a breach has occurred.
The above actions may be used in a court of law to assist the court when they are calculating a damages award, if necessary. Removing and replacing the executor is another option.
Do I Need an Attorney to Sue a Will Executor?
It is suggested that you consult with a skilled and knowledgeable estate attorney. State laws regarding estates as well as suing will executors can vary. A local and experienced estate attorney will be knowledgeable on such laws. An experienced estate attorney can review the will, as well as any evidence you have gathered. Finally, they can file a suit on your behalf, and represent you in court as needed.