June 2

Can The Executor of A Will Take Everything?


Being the executor of a will comes with huge responsibilities, and it’s more difficult than you may think. It’s the executor’s job to make sure that the assets and property are distributed to the beneficiaries as intended by the deceased person. 

So, could they take everything?

Can the executor of a will take everything

They could certainly try, but it’s illegal. There are certain rules and laws in place to help prevent this from happening.

If you’re not the executor of a will but are likely to inherit something from the deceased person, it’s natural to worry about the competence of the executor.

However, it’s important to remember that the executor of a will is chosen by the deceased person. This means that it is often someone they trust and someone that has their best interests at heart. The basic duties of a will executor are:

  • Making sure the property owned by the person who has died is secure, as soon as possible after the death
  • Collecting all assets and money due to the estate of the person who has died (including property)
  • Paying any outstanding taxes and debts out of the estate
  • Distributing the estate to the people who are named as beneficiaries in the will.

The executor of a will doesn’t have the power to make amendments to said will and is unable to override what’s stated within it. There are only a handful of circumstances in which an executor may have to go against what’s written in the will.

For example, the will may contain property that is no longer owned by the deceased person. Therefore, in such a case, it wouldn’t be possible for that property to be passed onto a beneficiary.

If a person dies with debts, the debts must normally be paid out of the estate as soon as possible. If the debt is large, this may lower the amount received by beneficiaries.

The executor will have to distribute what's left in accordance with the legal order of priority, which may result in certain beneficiaries receiving less than the will stipulates.

The executor needs to follow the will, and to act in the best interests of the beneficiaries and the estate. So long as they stay within those boundaries, they do have the final say.

But this doesn’t mean that an executor can ignore a will, though. If the executor tries to withhold bequests or acts against the beneficiaries' interests – for example, by selling property at an unreasonably low price - they may be prosecuted.

What an Executor can do:

In a nutshell, the executor is in charge of the majority of the estate's distribution decisions. Despite the fact that they must follow the instructions of the deceased's Will, they do have the authority to make some judgments on occasion.

If the testator's preferences are not expressed clearly or at all in their Will, the executor may be forced to make choices on their behalf.

Remember that the executor, even if named in the Will, has the option to decline to act. The court can appoint a new executor in these situations. 

What an Executor can’t do:

The fiduciary duty of an executor is to carry out your Will to the best of their ability and in accordance with the law.

However, determining the extent to which an executor's authority can be problematic. Here are a few of the things that an executor is not permitted to do.

  • Change the beneficiaries in the Will
  • Stop the beneficiaries from contesting the Will
  • Sign the Will on behalf of the testator, if it was not signed before the testator passed away
  • Execute the Will before the testator has passed away

If the beneficiaries of a Last Will and Testament believe that an executor is failing to fulfil their responsibilities, they can file a complaint with the court.

It is possible to remove the executor in some cases. In this instance, the court will normally handle the executor's responsibilities rather than appointing a new executor.

Can an executor decide who gets what?

No. Many people believe that a corrupt executor is able to just turn the tables and take everything for themselves, leaving the beneficiaries empty handed and with no right to contest it.

However, this just simply isn’t the case. If you’re dealing with a particularly troublesome or narcissistic executor, it can get frustrating as they often believe that they hold ultimate power and can make adjustments as they please. Executors cannot do this, unless they’ve been granted power of appointment. 

The executor of the will is given an additional job called a power of appointment. Instead of specifying which property items go to certain people, the testator gives the executor additional leeway.

For example, the executor may be given a list of people and instructions to give each of them whatever the executor deems appropriate based on relative financial need at the time of payout.

This type of power of appointment is called a limited power of appointment because it limits the distribution of the estate to certain people.

The executor of the will has been given a limited power of appointment whenever there is a limit on what the executor of the will can do with the contents of the estate.

The executor of the estate may also be granted a general power of appointment, which gives the executor far more discretion in distributing gifts and possibly even keeping the estate's contents.

If an executor doesn’t follow what’s stated in the will, the probate court judge and the support staff for the probate court supervise the work that the executor does.

The court can remove an executor who is not following the law, who is not following the will, or who is not fulfilling his duties. The court can appoint a new personal representative to oversee the estate.

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