When an individual creates a last will and testament, they do so with the expectation that their wishes regarding the distribution of their assets and the management of their estate will be carried out faithfully by the appointed executor.

The role of an executor is crucial in the probate process, as they are responsible for ensuring that the decedent’s wishes are respected and that the estate is settled in accordance with the law. However, there are instances where an executor fails to adhere to the terms and instructions laid out in the will.

In this article, we will explore the consequences of such actions and the legal remedies available when an executor doesn’t follow the will.

Duties and Responsibilities of an Executor

Before delving into the consequences of an executor not following the will, it is essential to understand the primary duties and responsibilities of an executor:

1. Probate Process: The executor is responsible for initiating the probate process, which involves filing the will with the appropriate court and obtaining the necessary legal permissions to administer the estate.
2. Asset Management: Executors must identify, secure, and manage the decedent’s assets during the probate process. This includes safeguarding property, managing investments, and ensuring that all financial obligations are met.
3. Debt Settlement: Executors are responsible for identifying and settling the decedent’s debts and obligations using the estate’s assets. They must prioritize these payments according to state laws.
4. Beneficiary Notification: The executor must notify beneficiaries named in the will and ensure they receive their designated inheritances as outlined in the will.
5. Accounting and Reporting: Executors must keep accurate records of all financial transactions related to the estate and provide regular accounting reports to the court and beneficiaries.
6. Distribution of Assets: Once debts and expenses are settled, the executor must distribute the remaining assets to the beneficiaries as specified in the will.

What Happens if an Executor Doesn’t Follow the Will?

When an executor fails to fulfill their duties in accordance with the terms of the will or breaches their fiduciary obligations, it can have significant legal consequences:

1. Legal Liability: Executors can be held personally liable for any financial losses suffered by the estate or beneficiaries due to their actions or negligence. This may include the mismanagement of assets, failure to pay debts, or not distributing assets as per the will.
2. Removal of the Executor: Beneficiaries or interested parties can petition the court to remove an executor who is not following the will’s instructions or is otherwise acting improperly. The court may appoint a new executor to carry out the duties faithfully.
3. Surcharge: Executors who mismanage estate assets or breach their fiduciary duty may be required to reimburse the estate for any losses incurred.
4. Voiding Actions: The court may void any actions taken by an executor that do not align with the terms of the will or are not in the best interests of the estate and its beneficiaries.
5. Legal Action: Beneficiaries have the right to take legal action against an executor who does not follow the will. This can result in a court order compelling the executor to comply with the will’s terms or seeking damages for any losses suffered.

Takeaway

The role of an executor is one of great trust and responsibility. Executors are legally obligated to follow the will and act in the best interests of the estate and its beneficiaries. Failure to do so can lead to serious legal consequences, including personal liability, removal from the role, and legal action by beneficiaries.

It is crucial for individuals creating a will to carefully consider their choice of executor and for executors to understand their duties and responsibilities to ensure the smooth administration of an estate in accordance with the decedent’s wishes. When conflicts or issues arise, beneficiaries and interested parties have legal avenues to protect their rights and hold the executor accountable.