Where are the "executor police" when you need them?

A question that Wills and Estates lawyers hear frequently is "what can I do about the executor?". The activities of the executor that cause concern can be anything from outright theft to simply doing nothing at all. And there is an unbelievable variety of things in between.

One of the most common examples of executor's behaviour that causes concern is distributing the deceased person's estate in a way that the executor thinks is fair, even though it's not what was directed in the Will. Obviously the role of executor is very poorly understood, because time and time again an executor will ignore the Will and pay out the estate according to his or her wishes, which is clearly not what he or she is supposed to do.

An example of this is an executor who divides the estate equally among him/herself and siblings, even though the parent's Will divided things a different way. I've asked executors over the years what the heck they thought they were doing by ignoring the Will, and the answer is always "but it's more fair this way", or some variation on "I didn't want to upset someone by leaving them less than the others".

This is not okay. The executor's job is to follow the Will, regardless of personal feelings. It's not the executor's money or the executor's decision. (As an aside, this is something that people need to consider when choosing an executor and one reason why family members don't necessarily make the best executors).

So who watches over these activities? Are there any executor police who keep an eye on executors? There is only one group of people who has the right to keep the executor on track with the Will. That group is made up of the residuary beneficiaries of an estate.

The residuary beneficiaries are the people who are sharing the bulk of the estate once bills have been paid, household and personal items have been divided, and specific gifts of cash have been made (such as to a charity).

When a residuary beneficiary has asked me for advice on what to do, and I've told them of their right to keep the executor on track, I sometimes get the response that the beneficiary doesn't want to make a fuss about who is getting what, because he or she doesn't want to look greedy. I understand that, and I agree with the general concept of not making waves that don't need to be made. However, a residuary beneficiary has not only the right to examine what the executor is doing, he or she also has an obligation to do so.

If the beneficiary knows that the executor, who has agreed to follow the Will by accepting the job as executor, is now violating that agreement by ignoring the Will in full or in part, then the beneficiary should insist that the executor follow the Will. Who else is there to stand up for the deceased person if the executor is not doing so, other than the beneficiaries of the estate?

Some of the actions that can be taken against an executor who doesn't follow the instructions in the Will include removing the person as executor, causing the executor to lose his or her executor's fee, or even personal liability if the behaviour is egregious.