A will is a legal estate planning document that an individual, called the testator, creates that outlines how they want their property distributed when they pass away. Different types of wills may be available, including:
- Self-proving wills;
- Holographic wills; and
- Oral wills.
Self-proving wills are wills that have been witnessed and signed following all of the formalities required by the state where the testator resides. Self-proving wills are the most commonly used type of will.
Holographic wills are handwritten without witnesses present. It is important to note that most states will not accept this type of will as valid and legally binding and will do so only under specific, limited circumstances.
Oral wills are wills communicated orally and not written by the individual who wants to distribute their estate. Oral wills are recognized in a handful of states and only under specific circumstances.
Each of these different types of wills has its own valid and legally binding criteria. In general, the requirements that must be met by a testator who wants to create a valid will include:
- Being of sound mind;
- This includes being eighteen years of age and knowing that the testator is drafting a will;
- Expressly stating that the document is the individual’s will;
- Signing and dating the will;
- Being signed by witnesses;
- State laws differ regarding how many witnesses must be present;
- The majority of states require that a witness will not inherit anything from the will;
- The witnesses should sign the will in the physical presence of the will’s creator; and
- The witnesses should sign the will at the same time;
- Having one substantive provision. This could include:
- Appointing a guardian for any minor children;
- Listing who is to inherit specific items; and
- Stating what happens to any remaining property not specifically mentioned in the will; and
- Appointing an executor.
What Is a Will Executor?
As noted above, a will is a legal document that outlines how an individual’s property and assets will be distributed once they pass away. Wills are an important part of estate planning.
A testator usually chooses to name an executor in their will. A will executor is an individual the testator chooses to manage their estate once they have passed away.
The executor may also be referred to as:
- A personal representative;
- An administrator; or
- The estate’s executor.
The executor ensures that the property of the decedent, or individual who passed away, is given to the correct beneficiaries, in addition to other duties. If the decedent had a legally valid will at the time of their death, the executor will generally be named by the decedent.
In some cases, however, the court will appoint an executor. One example would be if the estate’s owner passed away without a will, and their property had to pass through the probate process.
The duties and obligations of the executor are the same either way. In addition, an individual can apply to become an estate’s executor in some specific instances.
Although the law does not require that an executor is a legal or financial expert, the executor is typically required to fulfill many legal and financial duties. These duties include the executor’s fiduciary duty to the decedent’s estate.
What Are Some of the Duties and Obligations of a Will Executor?
The basic duty of the executor of a will is to ensure that all of the decedent’s taxes and debts are paid. After this, the executor distributes what remains to the appropriate and named beneficiaries.
The executor’s fiduciary duty includes acting in good faith and impartiality. This means that the executor must take reasonable steps to fulfill whatever instructions the decedent left regarding their assets and property.
In addition, the will executor must refrain from certain actions, such as using the decedent’s assets for profit or gain. The executor also has numerous other duties and obligations, including:
- Identifying all of the decedent’s property and bank account funds;
- Designating the property that is to be distributed;
- Identifying and contacting the named beneficiaries as well as any heirs that are named in the will;
- Resolving any debts, including tax debts, as well as financial disputes over the property;
- Making arrangements for probate proceedings, if they become necessary; and
- Supervising the distribution of the property and other assets to the named beneficiaries.
The executor also has certain ethical obligations to the decedent’s beneficiaries, which may include:
- Being honest about the estate when communicating with any beneficiaries;
- Refraining from seeking personal gain or profit from their position, as previously mentioned; and
- Exercising sound and reasonable judgment regarding making legal and financial decisions left to them by the decedent.
In addition, the executor is bound by any specific instructions in the will document. If an executor is not court appointed, they are likely an individual the testator trusted and respected.
An executor should act accordingly and do everything they can to the decedent’s estate according to their final wishes.
Can I Sue a Will Executor?
A will executor is responsible to the decedent and the beneficiaries to determine the decedent’s intentions regarding their property. Sometimes, an executor may make an error when distributing the estate.
These mistakes may expose an executor to legal liability if the error causes major loss to another individual, for example, one of the beneficiaries. One example of a major violation is when the executor attempts to skew the will’s wording to obtain personal gain.
This is a serious type of violation that may lead to a lawsuit and potential criminal consequences. If an executor fails in their duties, it may be considered a breach of contract and may be remedied as such legally.
If an individual is a beneficiary or other interested party to a will and they suspect that an executor has breached their duties which may require a lawsuit, they will need to begin documenting the alleged violations. Examples of appropriate actions an individual may take in this situation include:
- Reviewing the will and other documents to determine what their 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
- Having an attorney review the will to determine whether a breach has occurred.
These actions may be used in a court to assist the court when calculating a damages award, if necessary. Removing and replacing the executor is another possible option.
Do I Need an Attorney to Sue a Will Executor?
If you believe you need to sue a will executor, it is important to consult with a skilled and knowledgeable will attorney. The state laws governing estates and suing executors may vary.
Your attorney will know the laws in your state. Your lawyer can review the will and evidence you gathered and file a lawsuit on your behalf.