Tuesday, February 5, 2013
Can an executor get away with ignoring the instructions in the will?
Posted by Lynne Butler
"What can be some ramifications of an executor who disregards instructions that have been written in the will? I assume they cannot just get away with doing whatever they want can they?"
Executors get away with a heck of a lot, partly because they don't really know what they're doing and partly because the beneficiaries don't know either. This only gets worse when the executor either deoesn't hire an experienced estate lawyer, or hires one and ignores his advice. A large number of executors are under the impression that the estate they are looking after has been given to them to do with as they see fit, including re-writing the parts of the will they don't especially like, and of course this leads to trouble.
I'm glad to see you asking questions about this because beneficiaries and families in general need to know more about the estate process. There is no government agency that oversees what executors are doing. It's up to the beneficiaries of an estate to keep the executor on the straight and narrow, but that's not easy to do when you don't really know what the rules are.
Yes, there can be ramifications for an executor who disregards the specifics of the will. The severity of the consequences will depend on the facts of the breach. For example, an executor might ignore the will's instructions to sell everything, and give the beneficiary an item without selling it first. That would be considered less serious than an executor who decides to keep all of the money in the estate for himself without giving anything to the beneficiaries.
If an executor has simply made a mistake and realizes it, the objective should be to fix it to the extent possible without any need to punish anyone. However, court involvement is usually required to bring about any consequences for an executor because few will admit they've done something wrong, and even fewer will volunteer to correct their mistakes. The severity of the penalty is decided by a judge. Some of the things that judges will do fairly often are:
- remove the executor from the job of being executor
- reduce the executor's fee or withhold it altogether
- force the executor to produce a decent accounting
- set deadlines for the executor to meet
- force an executor to pay back money out of his own pocket
If the executor refuses to do as the judge says, the judge might ramp up the consequences. This could mean holding the executor in contempt of court, which could mean a fine or jail time.
If an executor has stolen from an estate, he can be arrested just like anyone else. Depending on the facts, this could lead to fines or jail time or other punishments decided by the courts.
Lately I've posted a few times about new cases involving executors who have been held accountable for not following a will. The courts seem to be cracking down on them, and for the sake of the families and beneficiaries who are at the mercy of the executors, I'm happy to see it.