Can The Executor Of A Will Take Everything?
It’s the story you see in the movies: someone dies, and they’ve named one of their children as executor of their Will.
Except it’s the sibling no one likes. It’s the one who can’t be trusted, the greedy one, the one who played nice with Mom and Dad so they could cash out upon their death.
Old family feuds, long stagnant, rise up from the dead. Everyone is asking themselves: will the executor steal my inheritance? Will life insurance policies be affected? Will I get nothing?
Yes, there is some truth to the executor horror stories of yore––but checks and balances in the legal system make sure that executors are held accountable.
While executors are the gatekeepers between an estate and its heirs, they don’t hold so much power that they can hoard assets beyond the wishes of the deceased and rights reserved for heirs.
Keep reading to find out what an executor (also known an estate trustee) can and can’t do, in addition to what you can do as a beneficiary when you feel an executor is violating the Will.
Want a full list of executor duties? Download a PDF checklist here: Executor Checklist
What are the powers of the executor of a Will?
Executors carry a heavy burden when someone dies. Not only are they required to manage the estate, but must also plan the funeral, cancel credit cards, gather documentation, and hire lawyers and financial planners who can help them crawl out of the administrative gutter.
The job is anything but glamorous.
An executor’s main responsibilities are:
- Designating estate assets to the care of minor children
- Applying for probate
- Interpreting the Will and distributing assets to beneficiaries
- Mediating disputes between beneficiaries
- Investing estate assets
What happens when a Will is confusing?
The most important thing to remember about an executor’s responsibilities is that they have a fiduciary duty to the estate. That means they must act according to what’s expressed in the Will, not in their own self-interest.
While conflicts of interest may arise due to what is often a dual role as executor and beneficiary, the former must still act in the interest of the deceased person’s wishes––and the courts help make sure they are accountable to the process.
But situations become tricky when the wishes in the Will are not clear, and the estate trustee has the authority to interpret the Will’s grey areas.
A real example in Ontario involved a father who died and left his three sons $150,000 each … with some stipulations:
“the amount shall be paid to him only if he purchases real property and the amount is secured by a no-interest second mortgage, with the said mortgage…being payable to [the] estate. If the property is sold and not replaced by another mortgage within ten years, then the amount is to be paid back to [the] estate. If [the] son owns the property, or a subsequent property, for a total of ten years, the mortgage is to be discharged by [the] Trustee and [the] son shall be allowed to keep the sum of $150,000.00.”
Clear as mud, right?
In this case, the executor was a friend of the deceased, and the vague nature of the Will’s language caused problems between the executor and the sons. To resolve the issue, the estate trustee sought legal advice and brought the Will to court for further interpretation. In the end, the court decided that each son was required to own real estate for a cumulative total of ten years before they could inherit their bequest.
What an executor can’t do
While an executor does have the power to interpret the Will to the best of their abilities, they can’t change the Will without applying for a variation of trust.
In some rare cases, a Will may be changed by the court through an application process if it’s obvious that some of the Will’s directives are outdated. For example, a Will may state that everything should be divided equally between two children, but it’s obvious the Will was made before the birth of a third child.
If all heirs and the estate trustee of the Will agree it isn’t valid, the heirs may be able to apply for a variation of trust and distribute the assets according to what they believe is fair. But this decision is complex and can’t be made by the trustee alone.
An executor also can’t:
- Delegate their responsibilities to someone else unless the Will gives them permission to do so
- Make a profit from their role as executor
- Act in their own interests ahead of the rights reserved by the estate
- Make reckless investment decisions with estate assets
- Buy estate assets without permission from affected heirs
- Change life insurance policies
The “executor’s year”
While an executor has a responsibility to keep heirs informed, they also have a year to carry out their duties (it’s called the “executor’s year”), with or without appropriate help.
The rule isn’t set in law, but the court will consider it in the event beneficiaries take the executor to court. After one year, if the heirs can show evidence of miscommunication, lack of transparency, and mismanagement of funds, they may demand payment (possibly with interest) from the executor.
What does an executor have to disclose to beneficiaries?
Executors need to be prepared to get and provide documentation related to the estate to heirs at any time. While an executor’s primary responsibility is to serve the person who died, they’re also at the service of the beneficiaries.
If you’re a beneficiary who doesn’t feel informed about what’s happening with your loved one’s Will, start by taking a breath. An executor’s role isn’t easy, and their tasks will take some time to complete.
But in the event of egregious miscommunication or even hostility, heirs can actively request to receive the following information:
Notice of probate court application
While probate is not always necessary for every Will, it’s highly likely that an executor may need to apply for it.
The probate court will confirm that the executor can administer the estate, after which the executor can assume their responsibilities to the beneficiaries. As a beneficiary, you’ll be served with notice that the probate application has been submitted.
Review of the Will
As a beneficiary, you can request to review some (or all) of the Will, depending on how much of it applies to you.
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.
After you receive the section of the Will that applies to your assets, you can hire your own lawyer to help you interpret its content, especially if the directive is vague.
Documented account of the estate
Beneficiaries often have questions about the administration of an estate, and the executor is obligated to show documentation that demonstrates how they’ve been handling assets.
If you feel like an estate trustee is resisting communication and transparency, you can request to see invoices, receipts, etc. If the executor refuses to provide documents, you can request a court-supervised review of the accounts. But this can get messy because it means you need to take the trustee to court.
Questions to ask when considering legal action against an executor
If you’ve gone to court, reviewed estate documentation, and you’re getting nowhere with the executor, you do have some options to remove them by law.
But before you consider legal action, ask yourself the following questions:
- Have I done everything I can to obtain the assets owed to me without getting the law involved?
- Is my communication with the executor on record?
- Do I have solid evidence that the executor isn’t fulfilling their duties to the estate?
- Is my inheritance enough to offset the lawyer’s fees I might incur as a result of attempting to remove the executor?
- Are other family members who are also beneficiaries willing to take legal action against the executor with me?
Reasons to remove an executor
If you’re confident in your answers to the previous questions, you may want to try to remove and replace the executor by law.
Here are some reasons why a court would approve the removal of an executor:
- It’s obvious they’ve mismanaged assets or received unlawful compensation
- There’s a record of refusal to provide a proper accounting of estate assets
- They’ve committed a crime
- They’ve filed for bankruptcy
- They flat out refuse to carry out the terms of the Will
- They’ve become incapacitated in some way
When you do want to remove an executor, it’s best to seek legal action with other family members who are also beneficiaries, as the court will consider everyone’s relationship to the person who passed away. For practical reasons, you may also want to share the cost of lawyer’s fees when taking the executor to court.
But we hope it doesn’t come to that! Remember that it can be a lengthy process to see assets from a Will, especially if the estate is complex and unclear. Exercise some patience … until it’s clear you need to take action.