Just as the title expresses, the role of executor is to carry out the intentions of the testator (aka person creating a will), so generally, executors do not volunteer their own discretion while fulfilling their duties. However, ambiguities in a will, or other extenuating circumstances may occasionally leave the executor with some judgment calls.
Clarity In The Will Is Best
When a Last Will and Testament (aka Will) is written, it’s important to provide as much clarity as possible for beneficiaries as well as the executor:
As the name implies, the role of the executor is to execute the instructions that you provide in your Will. You may give your chosen executor some discretionary powers in determining how your assets (money and property) are to be distributed, but they have limited latitude to make independent decisions. Any deviation from their specified powers could cause a conflict in your estate that leads to legal consequences.
To avoid any unnecessary complications in the settling of your affairs, take care to avoid ambiguous or unclear language in your will…..The executor named in a will is responsible for carrying out the testator’s final wishes. The executor is a liaison between the probate estate and the probate court, as well as between the probate estate and the beneficiaries. Their duties include locating and valuing assets of the estate, paying debts, and distributing assets to beneficiaries in accordance with instructions in the will.
It is common for executors to also be beneficiaries of the estate, and important to remember: “Executors owe a fiduciary duty to the estate and its beneficiaries that compels them to act in the best interests of both. Because an executor may also be a beneficiary of the estate, their actions may be scrutinized to ensure they are acting fairly and legally.” “Responsibilities of the executor include “to the best of their ability, carry out the directions expressly stated in the testator’s will,” but although an executor cannot change the will, there are some circumstances which may require the use of discretion. A testor might “explicitly”give the executor discretion related to in the will itself, related to particular responsibilities, as in these examples:
- The will gives the executor wide latitude to decide when to sell the testator’s property.
- The will allows the executor to decide whether to convert assets to cash prior to distribution.
- The will states that “reasonable and necessary” repairs must be made to the testator’s home prior to its sale or distribution (words such as “reasonable” or “necessary” may be too vague and leave the executor confused about how to proceed).
Ideally, wills should be clear, and in the best of circumstances, the testator and executor will have had time for plenty of communication and preparation. However, in the event of an unclear will:
The executor should seek clarification from the court to assist with interpretation. Anyone with a stake in the estate may also raise a legal challenge against the executor, asking the court to remove the executor or commencing probate litigation against them. When a gray area exists within the provisions of the will and the executor acts in good faith and within the scope of their power and duties, the court may uphold their actions. A petition to remove an executor or a lawsuit against the executor for breach of fiduciary duty will only succeed if there is evidence of misconduct, such as the executor explicitly going against the will or estate’s interests, acting in their own best interest, or withholding an intended gift from a beneficiary.
When carrying out their responsibilities, executors are always expected to “work in the best interest of all beneficiaries without showing partiality,” because as fiduciaries, they are legally obligated to ensure the affairs of the estate are properly handled, in accordance with the terms of the will–and the law. It’s often a good idea for executors to lighten the load and get help from lawyers, financial advisors and public accountants. These expenses can be charged to the estate—and professional assistance can make all the difference in efficiently closing out the affairs of the estate.
Executor Bonds?
Given the significant obligations. of executors,most states require executors to “have bonds to ensure their trustworthy behavior in their roles. These bonds guarantee that all the estate debts will be satisfied and that the remaining assets will be properly distributed to the appropriate heirs.” More Information about executor bonds, as well as a user friendly online service to obtain them quickly is available at Colonial Surety Company:
Probate and Estate Law?
With a few clicks on The Partnership Account® for Attorneys, lawyers everywhere around the country can efficiently help clients secure court and fiduciary bonds, on specific obligee required forms.
Just select the bond needed, send it to your client for payment, and then download, e-file or print the bond. Our fiduciary bonds include: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on. Court bonds include: appeal, supersedeas, injunction, replevin, receiver and more.
Easy, speedy court and fiduciary bonds here:
The Partnership Account® for Attorneys
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