What Happens When an Executor of a Will Doesn't Carry Out What the Will Asks For?

By Stephanie Kurose, J.D.

What Happens When an Executor of a Will Doesn't Carry Out What the Will Asks For?

By Stephanie Kurose, J.D.

When an executor of a will does not carry out what the will asks for, they can be held personally liable. Every state has a law in place that ensures the deceased's final instructions in the will are carried out according to its terms.

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Executor Basics

A last will and testament is a legal document that represents the last wishes of a deceased person. An executor is generally the person in charge of administering the will and accepts a number of responsibilities associated with the job.

When a person dies and leaves behind a will, someone must be in charge of starting the probate process and administering the deceased's estate. This person is the executor, sometimes referred to as a personal representative or administrator. Generally, the executor is someone named in the will by the deceased person and appointed by the probate court. If the will fails to name an executor, a court will appoint one on their own. An executor can be a family member, close friend, or a professional such as an attorney or bank representative. The named executor is not required to accept the position. If that is the case, a second person must be appointed for the job.

Executor Responsibilities

When a person accepts the role of executor, they are essentially accepting the role as a fiduciary. A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties. Typically, a fiduciary prudently takes care of money or other assets for another person. The executor must act in the best interests of the beneficiaries, and if they do not, they risk being held personally liable for their actions or inaction.

Fiduciaries are not allowed to benefit at the expense of a beneficiary. It may be considered a breach of fiduciary duty if the executor does not accurately disclose the estate assets or fails to carry out the terms of the will. In order to avoid personal liability, the executor should keep all beneficiaries informed and maintain records of all transactions related to the estate. If the executor wants, they can hire an attorney to help out with this process.

Removing an Executor

If an executor fails to carry out what the will asks for, a beneficiary or other interested person, such as a creditor, may petition the probate court to have the executor removed.

If there is any evidence that the executor did any wrongdoing, such as defrauding the beneficiary, stealing from the estate, intentionally hiding assets, refusing to follow the terms of the will, or failing to maintain records, the court may remove the executor and appoint a new one. The person requesting the removal must prove that it is necessary by giving a reason acceptable under state law and providing evidence that the executor is no longer fit to administer the estate.

Personal Liability of an Executor

An executor may be held personally liable for not carrying out their duties or doing so improperly. For example, if the executor fails to pay estate taxes, they can be held personally liable for any resulting interest or penalties owed.

Any beneficiary can file a lawsuit against the executor if they mismanage estate property or do anything to breach their fiduciary duty. If successful, the beneficiary may be able to claim monetary damages and recover any benefit the executor might have gained due to his breach.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.