Does the Executor Have Authority Over the Will?

by Cindy Hill

    An executor is the person named in a will to administer the estate of the person who died. The executor may be a bank or trust company instead of an individual. While state law varies as to the exact duties of an executor, in general all executors must gather the estate's assets, pay creditors, then distribute remaining estate assets in accordance with the will's directives, without any discretion to deviate from the will except in limited circumstances.

    Administration

    Once officially appointed or approved by the probate court, executors have the authority to administer the estate. The executor must assemble and inventory the estate assets, review and pay all lawful claims against the estate, file tax returns, and seek probate court approval before making final distributions of estate assets -- if any remain after the estate debts have been paid. The role of the executor is complex, and not always understood by the beneficiaries of the will. In the best-case scenario, the decedent -- the person who died -- will have chosen an executor who is trusted by the beneficiaries, so that the executor's actions will not be the subject of suspicion or cause bitterness, which should reassure the will-maker as he prepares his will.

    Duty to Follow the Will

    The executor -- in some states referred to as a 'personal representative' -- has a duty to administer the will in accordance with the provisions of that will and the laws regarding estate management. The executor cannot rearrange or ignore the will or portions of it for personal gain, although she can receive a bequest through the will and receive payment for her duties as executor if allowed by state law. This does not always mean that a beneficiary will receive exactly the bequest stated in the will, however. If the decedent's estate is insolvent -- if it does not have enough assets to cover the debts, taxes, and costs of administration -- then the beneficiaries may receive nothing.

    Fiduciary Responsibility

    An executor has a fiduciary duty to the estate. This means that the executor must work within legal parameters to maximize the assets of the estate and minimize the estate's liabilities to help insure that the bequests stated in the will can be paid out in full. If the executor fails to locate and properly value all the estate assets, or pays bills that did not need to be paid, she may be personally liable for those errors. The executor must provide an accounting of the estate to the probate court, and to beneficiaries who wish to see it, detailing the assets of the estate and every penny acquired or paid out during the estate administration before the final bequests can be made.

    Noncompliance

    Beneficiaries may petition the probate court for compliance if an executor isn't carrying out her required duties. The court can order the executor to comply with the terms of the will and can set timelines for action. A beneficiary can also petition the probate court for a detailed accounting of the estate if the executor has not yet provided one. A noncompliant executor may be held in contempt of court or removed as the executor, in which case the court will appoint a substitute executor. It is important to act promptly to file any complaints against the executor in probate court however; statutes of limitations may bar actions that are filed to late, and as a more practical matter, once the estate assets are gone it may be difficult to re-assemble them.

    About the Author

    A freelance writer since 1978 and attorney since 1981, Cindy Hill has won awards for articles on organic agriculture and wild foods, and has published widely in the areas of law, public policy, local foods and gardening. She holds a B.A. in political science from State University of New York and a Master of Environmental Law and a J.D. from Vermont Law School.