Are you wondering if the executor of a will has the power to determine who receives what? The role of an executor is crucial in ensuring that a deceased individual’s wishes are carried out according to their will. In this blog post, we’ll dive into whether an executor can make decisions on inheritance distribution and provide clarity on this often misunderstood aspect of estate planning. Let’s unravel the truth behind “Can An Executor Decide Who Gets What in a Will?”
The Role of an Executor
Choosing the executor of your will is one of the most important parts of estate planning. Usually, one or two people are chosen, although you can appoint up to four executors if you wish. The executors named are responsible for administering the estate (which includes everything the deceased person owned) and for distributing gifts to beneficiaries of the will. The role of the executor is an important job, and there is often a lot of work to be done. When managing an estate, appointed executors may need to liquidate assets, sell property owned by the deceased, and manage other financial affairs. The executor will apply for a death certificate and a grant of probate, and liaise with everyone involved in the estate during the probate process.
What Is an Executor of a Will?
It is essential that you choose an executor who you trust and who is willing and able to take on the responsibilities of being an executor. This may be a family member, a close friend, or a professional executor like a solicitor, but you should ensure that they understand their responsibilities before you appoint them. Always discuss appointing your executors with them before you die so there are no surprises when you pass away.
Choosing the Executor
After probate has been granted and any debts have been cleared, the executor can start to distribute the estate to the beneficiaries named in the will. Common tasks of an executor include registering the death, locating an original copy of the will, arranging funeral arrangements, gaining access to property, notifying banks and other financial institutions, valuing the estate, managing financial affairs, calculating and paying Inheritance Tax, applying for probate, managing the estate assets, and preparing estate accounts.
Responsibilities of an Executor
It is essential that you choose an executor who you trust and who is willing and able to take on the responsibilities of being an executor. This may be a family member, a close friend, or a professional executor like a solicitor, but you should ensure that they understand their responsibilities before you appoint them. Always discuss appointing your executors with them before you die so there are no surprises when you pass away.
Can an Executor Decide Who Gets What?
An executor’s key role is to manage the deceased person’s estate according to the provisions of their last will and testament. This means that in most cases, an executor cannot decide who gets what after a death. The executor must follow the terms of the will and distribute the assets accordingly.
Tasks an Executor Cannot Perform
Things an executor cannot do include going against the terms of the will, breaching their fiduciary duty to the beneficiaries, failing to act as an executor, stealing money from the assets of the estate, and intentionally harming the estate. Executors must act in the best interests of the beneficiaries and carry out the testator’s wishes as outlined in the will.
Trusts and the Role of Trustees
Many wills include trusts so that assets can be held on behalf of a beneficiary for a set time. The trustee has complete control over the assets and the income they generate. However, they cannot choose beneficiaries, and can only decide when to distribute assets to the specified beneficiary. A trustee must always act in the beneficiary’s best interest and cannot decide who gets what.
Can an Executor Decide Who Gets What in a Trust?
No, an executor cannot decide who gets what in a trust. The trustee is responsible for managing the trust assets and distributions, not the executor. Trustees are bound by the terms of the trust agreement and must act in the best interests of the beneficiaries, without having the ability to alter the designated beneficiaries.
Uses of Trusts
Some common uses of trusts include funding education for children or grandchildren, providing care for vulnerable loved ones, holding inheritance for a child or grandchild until they turn 18 (or older, if specified), and providing income or property for a second spouse during their lifetime, ensuring assets are then passed onto the children from the first marriage after death.
Duties of a Trustee
Trustees can also be beneficiaries. When used correctly, trusts can be valuable in minimising Inheritance Tax liability for estates and also protecting assets from creditors or divorcing partners. Trustees must act in the best interests of the beneficiaries and cannot decide who gets what, as they are bound by the terms of the trust agreement.
Avoiding Executor Disputes
When it comes to can an executor decide who gets what, the answer is clear – executors must adhere strictly to the terms of the will. However, disputes can still arise during the estate administration process. To minimise the risk of such conflicts, it is essential to choose the right executor and consider appointing multiple executors.
Choosing the Right Executor
You should always choose an executor who you trust and who is willing and able to take on the responsibilities of being an executor. This may be a family member, a close friend, or a professional executor like a solicitor, but you should ensure that they understand their duties before you appoint them. Always discuss appointing your executors with them before you die so there are no surprises when you pass away.
Appointing Multiple Executors
It is also often advisable to appoint more than one executor. This means that they can share the responsibility and keep each other in check if either one tries to going against your wishes. This will also help if one of the executors dies during the probate process.
Addressing Beneficiary Concerns
If you are a beneficiary and you are not happy with how an executor is behaving, or you have concerns about their ability to carry out their role, you may consider filing a dispute claim with the court. In certain circumstances, you can apply to the court for an order to have the executor removed and replace them with someone else.
Legal Challenges and Disputes
When an executor is not carrying out their duties properly, a beneficiary may be able to apply to the court to have the executor removed. The court will consider factors such as whether the executor has breached their fiduciary duties, mismanaged the estate, or failed to act in the best interests of the beneficiaries.
Executor Removal Process
Beneficiaries must provide evidence to support their case for executor removal. Grounds for executor removal may include going against the terms of the will, breaching their fiduciary duty, failing to act, self-dealing, embezzling assets, or intentionally harming the estate.
Grounds for Executor Removal
If an executor is not fulfilling their responsibilities, such as delays in administration, failure to communicate with beneficiaries, excessive fees, or mismanagement of estate assets, beneficiaries can file a dispute claim with the court. The court has the power to intervene and order the executor to be replaced if they have breached their legal obligations or mishandled the estate administration.
The Role of a Probate Solicitor
Choosing who will be appointed as your executor is a big decision; you must ensure that your wishes are carried out exactly as you have written them down in your will. Our probate solicitors have a wealth of experience in helping executors administer an estate after a death, and can support them in managing legal issues that may crop up during the probate process.
Assisting Executors
Our probate solicitors can guide executors through the complexities of estate administration, from reviewing estate papers and obtaining the Grant of Probate, to settling liabilities, calculating tax obligations, and overseeing the distribution of assets to beneficiaries. Their expertise can help ensure compliance with legal requirements and mitigate potential errors or delays.
Resolving Disputes
If disputes arise between the executor and beneficiaries, our probate solicitors can provide advice and assistance. They can help to ensure that the estate is managed according to the testator’s wishes and that the rights of all beneficiaries are protected. Solicitors can also represent executors or beneficiaries in legal challenges to the will or the executor’s actions.
Conclusion
In summary, an executor cannot decide who gets what from a will, as their primary duty is to carry out the wishes of the deceased as outlined in the will. Executors must act in the best interests of the estate and the beneficiaries, and cannot make changes to the will or the distribution of assets unless permitted by law. While disputes can sometimes arise, there are legal processes in place to address concerns and ensure the will is administered properly.
Seeking the support of a probate solicitor can be invaluable in navigating the complexities of estate administration and resolving any issues that may arise. They can provide guidance to executors, assist in managing legal matters, and represent both executors and beneficiaries in the event of disputes. By working closely with a professional, executors can ensure the estate is handled efficiently and the testator’s final wishes are respected.
Ultimately, the role of the executor is to be a faithful steward of the deceased’s estate, not to make independent decisions about who should inherit. By understanding the limitations and responsibilities of the executor’s role, you can have confidence that your final wishes will be carried out as you intended.
FAQ
What is an executor of a will?
An executor is the person who manages the estate and carries out the final wishes of the deceased as outlined in their will.
What can’t an executor do?
Executors cannot go against the terms of the will, breach their fiduciary duty, fail to act, steal money, or intentionally harm the estate. They must act in the best interests of the beneficiaries.
What are the key duties of a trustee?
Trustees must act in the best interests of the beneficiaries and cannot decide who gets what, as they are bound by the terms of the trust agreement.
What if I’m not happy with how an executor is acting?
If an executor is not carrying out their duties properly, a beneficiary may be able to apply to the court to have the executor removed and replaced.
What are the grounds for removing an executor?
Grounds for removal include going against the will, breaching fiduciary duty, failing to act, self-dealing, embezzling assets, or intentionally harming the estate.
