What happens if an executor doesn’t follow the will?
It is stressful enough when a loved one dies. So the last thing you want is to start worrying about their estate and the handling of their will.
However, this can happen sometimes, and beneficiaries and interested parties can become concerned that the appointed executor is not fulfilling their role properly.
So what happens if an executor doesn’t follow the will? What are your rights and options, and what is the best approach to take to minimise cost, time and damage to relationships? That’s what we are gong to explore in this article.
What are an executor’s duties?
Before we look at your options if you believe an executor is not fulfilling their role, we need to understand what their responsibilites are. Here is an overview of their duties:
- They need to initiate the probate process, including the validation of the will and acquiring the legal authority to administer the estate.
- They have to gather, identify and keep safe any assets related to the estate, including personal belongings, investments and properties.
- They are required to ensure any creditors to the estate are notified – this can include placing newspaper ads so any unknown creditors can come forward.
- They must pay any debts, funeral expenses and taxes from the estate’s assets.
- They oversee the distribution of assets to beneficiaries, according to the will.
- They are required to keep accurate financial records of any financial transactions related to the estate, and make accounts available to a court and any beneficiaries.
What happens if an executor doesn’t follow the will?
So what happens if an executor does not perform the above duties? What are the potential consequences, your options, and how can they be held liable?
You can legally challenge them
If you are a beneficiary of a will and you believe that the executor is not following the terms of it, you can take legal action against them. You can request that the court removes the executor and appoint someone new. Or you can ask the court to compel the current executor to carry out their duties according to the instructions of the will.
However, it is worth noting that any legal challenges can add delays and legal costs to the estate, so it is preferable to settle any agreements outside court if you can.
They are personally liable
If an executor does not act in accordance with the instructions in the will, and manage the estate properly, they can be held personally liable for any financial losses. This might involve reimbursing any funds that were mishandled or misappropriated.
They can be removed from their role
If you take legal action and the court agrees that the executor is not acting in the best interests of the beneficiaries or estate, they can be removed from their role. This would happen after a formal hearing in which you and any interested parties would present evidence of the executor’s misconduct or negligence. They would also have the opportunity to defend themselves.
They can be liable to penalties and fines
If an executor fails to adhere to the will, in some jurisdictions the court can impose penalties or fines. However it’s worth noting that penalties can reduce the estate’s assets.
They can damage relationships
Death is upsetting enough, without adding worries about money or unfair handling of the estate into the mix. It’s not uncommon for executor disputes and legal action to cause strain and resentment between family members.
So it is important to handle any concerns carefully, and opt for discussion and ‘softer’ dispute resolution methods, such as mediation, before taking legal action. Not only will this be quicker and less costly, but it can help to prevent a family fallout that can last for years.
How can you avoid problems with an executor?
So how can you hopefully prevent your beneficiaries from any undue stress or costs when handling your estate? Here are some suggestions:
- Choose your executor carefully and ensure it is someone who understands the responsibilities, is capable of carrying them out, and is fair and honest.
- Make sure your wishes are clearly communicated in your will, and there is no ambiguity.
- Ensure everyone is fully informed of their roles in the event of your death, and is happy with them.
- Review and update your will regularly to reflect any changes.
An executor’s role is important
An executor plays an extremely important role, and must perform their duties properly. If they do not, you have the right to challenge them and seek redress. It can help to have expert legal advice to ensure that you take the right steps, and achieve a just outcome with minimal damage to family relationships and the estate.
