Why do the courts give much latitude to an Executor of an Estate?
Does the Executor have the final say?
It is always asked, “Does the executor have the final say.” Well, this depends on several factors, the courts will say, “yes,” as long as their fiduciary duty and faithfulness to the Will is kept above the interest of the Executor.
First, you have to remember the Executor was assigned, i.e., appointed to be the probate administrator of the Will. They are mandated by the court to liquidate assets, property, and pay off creditors and taxes to move to the next phase, distribute the estate to beneficiaries. As long as the Executor can show based on bookkeeping, appraisals, fair market value faith estimates, it’ll be hard to petition the court to remove the Executor. Now, remember, the Executor’s first and foremost duty is to settle the estate of the testator and to do it in a timely manner. Within the same vein, is the fiduciary duty to the beneficiaries. So it’s somewhat like a balancing act in that they must comply to sell assets at the same time get close to fair market value and not looked upon as self-dealing.
What if the Executor is taking his/her time on liquidating the assets?
If you feel the Executor is merely sitting on their hands, and not distributing the estate to the rightful beneficiaries, you have to have a compelling reason.
Here are some chief complaints against an executor or administrator of the Will.
- Things are taking way too long: Beneficiaries many times feel the time it takes to complete probate should happen fairly quickly. Many times, beneficiaries don’t understand that it can take upward of 10 months to years depending on the size of the estate and whether another beneficiary is contesting the Will.
- Accounting: There are times where the Executor refuses to give an accounting in a timely and reasonable manner to the beneficiaries. A definite Red flag. Here is where an estate planning attorney specializing in probate can provide insight. Note: If it’s found that the Executor is self-dealing, not only will they be removed as the Executor, but they may also be sued in civil court to recoup all the damages.
- Sitting on Real Estate and refusing to sell: There have been situations where the Executor is living in a property that was initially the testator’s property. It can be looked upon as self-dealing. To initiate a discussion, send a letter or email discussing the status and maintain records to show the courts if they don’t respond on time.
What are the responsibilities of the Executor?
It seems that to be nominated as the Executor is an advantage! You, as an Executor, at the final decision, based on due diligence, can override the beneficiaries. It is advisable, however, to maintain good standing with the beneficiaries and keep them abreast of the accounting such that they don’t petition to the courts that you are not following the testator’s wishes.
Why is it that the Executor has the Final say in the liquidation of the estate?
A will has a general structure to comply with the courts; otherwise, it may be considered voidable and contested by heirs and beneficiaries. So, in essence, the testator selects an Executor, i.e., someone they trust to administer the Will. It implies the properties are left to the Executor in the trust. Also, a well-written will instructs how to distribute to the heirs and beneficiaries.
To continue, they have the responsibility to do the following:
- Identify all assets and protect them from being sold.
- Make arrangements with the funeral home
- Take Inventory of all real estate and determine the value (appraisal) as well as the market.
- Pay off all debt and taxes.
So, if the Executor is challenged in court, and can show their due diligence with the above, and have kept proper bookkeeping, and logs, it will be difficult to override the Executor of their final decision.