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Wednesday, November 5, 2014

At what point is the executor required to show the will to family?

I received the following question from a reader who wanted to know about the executor's obligation to show the will to family members. The law is clear on who has a legal right to see a will, but in real life, it's not always easy to apply that rule. The question and my response are below:

"At what point is an executor required to show the will to family ? Are they obligated to show family members? My question is based on a friend who is an executor. They are still working out wording in will with estate lawyer as to who beneficiaries are. Will in question may not include a sibling as a beneficiary.  I've read that once probate is done people can apply to court to view it. And that executor does not have to show them until probate complete?"

As harsh as it may sound, the executor is not required by law to show a will to someone who may be a family member, but who is not a residuary beneficiary under the will. That seems a simple statement, but the application of it can cause incredible heartache to family members who don't understand why they've been left out, or even believe the executor when they are told they are left out.

It sounds as if right now, the family is anxious to get on with the estate. If there is a question about the wording of the will, hopefully it can be resolved by a bit of research on the part of the lawyer. If not, the problem with the wording may be referred to a judge for a ruling. I can certainly see why no copies of the will have been distributed. Each person looking at the will is going to apply his or her own judgment to how it affects them and each other, and this may well cause disputes and expectations that are doomed to disappointment.

Usually a beneficiary sees the will before probate is granted, but usually there aren't issues with the wording.

I  hope that if the sibling you  mention is not included under the will, he or she will at least receive a letter from the estate lawyer on behalf of the executor that confirms in writing that he or she is excluded. It's important that the sibling is treated well, even if the executor is not going to show him or her the will itself. The letter is also important because the disappointed sibling may want to go through the courts to force the executor to hand over a copy of the will. Though the executor is not required to show non-beneficiaries the will, the court can make an exception where the person in question may be able to sue to change the distribution under the will.

At this point, many people question why on earth the executor wouldn't show the sibling the will, just to be transparent about what's going on in the estate and answer the sibling's questions. And I should add that I find the majority of executors much too secretive for their own good. However, you  have to keep in mind that part of the executor's job is to maintain the privacy of the estate by keeping documents and information out of the hands of those who are not part of the estate. Sometimes, asking the excluded beneficiary to attend a family meeting in which the executor meets with the group of beneficiaries might be the kind and expedient thing to do, in order to head off a lawsuit.

It's a balancing act. What gets lost in the application of legal rules sometimes is that people are part of a family, and they have an emotional bond. Therefore, in my view executors have a moral obligation, if not a legal one, to treat family members respectfully and openly. An executor should weigh the risks of showing an excluded family member the will, and weigh privacy against expediency and family unity.

2 comments:

  1. Hello,

    I have a friend who is the executor of his mom's will. He followed the Will to a tee and gave his sister and brother the money as outlined in the Will. He even showed them the Will. His brother is not happy with his $50,000 inheritance. He now wants a copy of the Will. Is my friend legally obligated to give his brother a copy of the Will?

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    Replies
    1. If the brother is a residuary beneficiary, then yes he is entitled to a copy of the will as well as a full accounting. It sounds as if in this case the brother is not a residuary beneficiary and believes that he is entitled to more.

      At this point, your friend should not just be thinking about rights and whether the brother is going to enforce them through the courts. It's not that simple. He should use some common sense as well.

      Why wouldn't he give him a copy of the will? What is to be gained by refusing? If he has followed it to a tee, then there is certainly nothing to hide, so that can't be the issue.

      Perhaps your friend thinks that if the brother sees the will, he will contest it. Your friend should know that withholding the will is not going to prevent a will challenge. In fact, if the brother has to get a court order to get a copy of the will from the executor, the executor may well be on the hook for court costs. Your friend should keep in mind that the person asking for the will is not a stranger, but a son of the deceased. This is what we call a "logical beneficiary", or a person who could be expected to share in the estate. This means a judge may well decide that he should be able to have a copy of the will.

      Lynne

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