Does an Executor/Trustee have to follow the Will?
March 14, 2018What is the difference between “joint tenants” and “tenants in common”?
March 19, 2018By law, an executor owes each beneficiary of a will a fiduciary duty. An executor should never willfully take action that is contrary to the instructions given in the will, nor should he ignore provisions that cause the beneficiaries’ claims to weaken.
If the executor does not carry out the requirements outlined in the will, or otherwise harms the assets of the estate, the beneficiaries can challenge the actions of the executor in court.
This can be done by filing an application to preserve the assets of an estate or to seek the removal of an executor prior to them acting improperly.
By challenging the executor’s actions in court, the beneficiaries may be able to hold the executor liable for breach of fiduciary duty, as well as for the financial consequences that follow.
Unfortunately, a breach of fiduciary duty is not uncommon. This can happen when the will does not give clear direction. This is why it is extremely important to seek the assistance of a lawyer when preparing your will and not to use a will precedent or “framework” found online.
A breach of fiduciary duty may also occur when the executor has a personal interest in the estate. Many individuals choose their loved ones and family members as their executors. While this is often a good idea, as the executor should be someone that you trust, you should still be extremely prudent in making this decision. When the executor has a personal stake in the estate, there is always a chance that this will affect his or her decision-making. If you are unclear about choosing an executor, you should seek professional information or guidance.
If you are the executor/trustee of an estate and are concerned that you may be making a decision contrary to the terms of the will, it is important that you seek legal advice prior to making a final decision.
If you a beneficiary of an estate and believe that the executor has done something improperly, has a conflict of interest in the administration of the estate or has breached their fiduciary duty, you should seek legal advice as soon as possible.