Next of Kin Rights vs. Executor of the Will

By John Cromwell

An executor has many responsibilities, and most of those relate to the next of kin of the decedent. The closest living relatives of the decedent often have the most to inherit from a decedent’s estate and as a result can be greatly affected by how the executor carries out his duties. However, the obligations of the executor to the next of kin must be balanced against the executor’s responsibility to fulfill all probate requirements, which may vary by state.

Fiduciary Duty

The executor has a fiduciary duty to the beneficiaries of the decedent’s will. In general terms, this means that the executor is required to manage the decedent’s estate to maximize the value of the property that the beneficiaries receive. Specifically, an executor is supposed to make decisions that benefit all of the beneficiaries and cannot take actions that would enrich the executor at the estate’s expense. When carrying out his responsibilities, the executor should keep in contact with the beneficiaries to let them know of any significant developments regarding the estate and its management.

Probate Property

While the executor is meant to provide assets to the decedent’s beneficiaries, the decedent’s property must go through the probate process first. Probate is a legally required, court overseen process where the executor gathers the decedent’s property and uses it to pay off the decedent’s outstanding debts. The executor is required to do this before distributing what remains to the decedent’s beneficiaries.If the decedent had a lot of outstanding debts, the beneficiaries will get a smaller gift from the estate. If the amount owed is large enough, it is possible that the decedent’s next of kin will get nothing at all.

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Will

Early in the probate process, the overseeing court will evaluate any prospective wills of the decedent. If the court determines that one of the wills is valid, the executor must comply with its terms. While what constitutes a valid will varies by state, generally it must be written down by a person of sound mind who signs the will in the presence of two witnesses. The witnesses must also sign the will as well. The executor is required to distribute the estate assets that remain after paying the decedent’s debt subject to the terms of the will.

Intestacy

If the probate court determines that there is no valid will, the executor must distribute the estate property to the next of kin subject to the state’s intestacy code. The intestacy code defines who receives estate property based on which of the decedent’s relatives are still alive. Generally, the decedent’s spouse, children and parents’ get the majority of the decedent’s estate. If none of those relatives survive the decedent, his estate goes to other relations such as uncles, nephews and cousins.

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References

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