Can An Executor Decide Who Gets What?
The story is as old as time, so we’ll keep this version brief: Someone dies, and one of their children is the executor to their Will. Other family members may have experienced a rocky relationship with that person, and they begin to question whether they’ll receive their estate entitlements.
So beneficiaries begin to wonder … can an executor decide to withhold the money or real estate they’re entitled to? If a Will isn’t straightforward, can an executor take liberties with the interpretation of a Will? Are there any rights reserved for beneficiaries if a situation goes awry, especially when it comes to family? And if disputes arise, what right does a beneficiary have to make sure they receive what’s rightfully theirs?
But first, let’s clear up one thing…
Before we answer these questions, let’s get something out of the way: Executors don’t have a right to change anyone’s Will, just because they were appointed as the executor. If your deceased loved one explicitly stated in their Will that you should receive property or other assets, an executor can’t sweep in and change the wording.
But sometimes Wills are not straightforward, and further interpretation of the estate is needed. Keep reading to find out more about how executors, beneficiaries, and the courts must deal with the grey areas that are occasionally found in Wills.
What power does an executor of a Will have?
You can think of an executor as the gatekeeper between someone’s estate and its beneficiaries.
They are administrators––not writers. An executor’s primary responsibility is to carry out the intended wishes of the deceased about their estate.
Executors may have a lot of responsibility, but that doesn’t mean they hold a glamorous power. If anything, executorship can be more of a burden.
When someone dies, executors will step in, cancel financial accounts, gather documentation and death certification, and hire lawyers and financial professionals who can help them navigate the administrative maze of death logistics.
At a high level, an executor’s main duties are to:
Apply for probate to validate the Will
Interpret the Will and distribute assets to beneficiaries, including property and cash
Direct any estate assets needed for the care of minor children
See to the filing of all necessary tax returns
Want a list of some common executor duties? Download a PDF checklist here: Executor Duties Checklist
An executor has what’s called a "fiduciary duty" to the estate. By law, they have to act in the best interests of the estate.
When someone dies, their Will usually needs to pass through probate to get validation by the court in your province. This is an important process, where the court gives the executor the authority to carry out the wishes in the Will. So you can at least rest assured knowing that the executor is accountable to the courts before the process of estate asset distribution even begins.
But what happens when the court validates an executor, but the Will is unclear or outdated? Can an executor change the contents of the Will within the guardrails of estate interpretation?
What can an executor
An executor can’t change a Will by themselves.
But an executor may apply for a variation of trust with the courts if:
The directives of a Will aren’t clear.
The contents of the Will don’t reflect current circumstances that may have been different when the Will was written.
For example, a deceased person may have wished that their estate be divided equally between two children—but a third child was born after the Will was written. (You’d be surprised how often people forget to update their Will—learn more about when you should here.)
Getting a variation of trust is not necessarily straightforward, even if all beneficiaries of the estate and the executor are in agreement. Any time you have to involve the court it can be a lengthy and costly process. So it’s ideal if this can be avoided.
Can an executor override a beneficiary?
If you’re wondering whether an executor can override a beneficiary, you’re asking the wrong question.
An executor can’t override what’s in a Will. If you’re a beneficiary mentioned in someone’s Will, the executor can’t cut you from the Will after the testator has died. You still have rights to the estate as written.
Executors and beneficiaries are able to take certain steps to ensure estate asset distribution happens smoothly. They can also choose to resolve disputes by applying to court. Here are some of the most common disputes between executors and beneficiaries (and how they are usually resolved).
The executor doesn’t want to hold a “reading of the Will”
A formal reading of the Will isn’t a thing, though you may see it in movies! It’s not required under the law and it’s not often done.
If you’re a beneficiary who’s in the dark about the contents of your loved one’s Will, start by accessing some patience. An executor’s role isn’t easy, and their tasks for the estate will take some time to complete. Find out more about how long an executor has to carry out their duties here.
If the executor applies for probate, all beneficiaries must get notice. As part of that notice, you should have a right to see some or all of the Will (depending on what you’ll be receiving as assets under the Will).
After a Will has been granted probate, it’s a public document––so anyone who applies to the court and pays a fee can see it.
If you don’t understand the language of the Will or think that some parts of the Will are vague, you may need to consider speaking with an estate lawyer to interpret the contents of the Will for you.
The testator was not “of sound mind” when writing the Will
A Will is only valid if the testator was of sound mind at the time they created it. That means a person needs to understand their financial status and the consequences of their actions when writing their Will and choosing their executor and beneficiaries.
But be careful––if you want to pursue this argument, the burden of proof will need to fall on you. You’ll need to gather evidence, perhaps with the help of an attorney, that the testator was not of “sound mind” when they wrote or revised their Will. Just a warning: this can be difficult when medical records are private.
The estate must settle personal debts and taxes before the executor can distribute assets to beneficiaries
Sometimes people die owing debts to creditors, perhaps for property, or taxes. If this happens, the executor is obligated to make sure the debts and taxes are settled before they can pay any beneficiaries.
Let’s say a testator still owes debts to a bank for their house. The executor is on the hook for ensuring this debt is paid, often via the sale of the home.
What can beneficiaries do when an executor violates the Will?
If you just can’t seem to get what you need from an executor and you’re fairly certain you’re in danger of not receiving your entitlements, you do have some options to seek the legal removal of an executor that you don’t trust.
But before you take legal action, make sure to ask yourself the following questions:
Have I done everything I can to obtain my assets without needing costly legal advice?
Do I have other beneficiaries who are willing to take legal action against the executor with me?
Have I documented my communication with the executor?
What evidence do I have that the executor has violated their duties to the estate?
Are my inherited assets enough to pay for the lawyer’s fees of a dispute?
If you’re confident in your answers to these questions, it’s well within your rights to proceed with legal action to remove the executor.
Reasons why a court would approve the removal of an executor:
The executor has mismanaged assets
You have a record of a refusal to provide a proper accounting of estate assets
The executor has committed a crime
You have documentation of refusal to carry out their fiduciary duties to the estate
The executor becomes incapacitated
If you’re reading this, we hope you don’t have to make the tough decision to seek legal advice due to a dispute.
Most of all, however, we hope you’re left with some clarity––and with the entitlements your loved one wanted you to receive.