Can An Executor Decide Who Gets What ?
What Power Does An Executor Of A Will Have?
When you begin estate planning, one of the first and most important steps you should take is deciding who the executor of your Last Will and Testament will be.
The executor will have a fiduciary duty to sort out and manage your estate after your death. They are also responsible for distributing your assets to your beneficiaries. Your executor will step into your shoes when you pass away and act on your wishes in more basic terms. But, you may be wondering, can an executor decide who gets what?
Can An Executor Of A Will Decide Who Gets What?
Can an Executor of a Will decide who gets what? In most instances, no. Their responsibility is to give away your property according to the instructions you left in your Will. However, if the creator of the Will did not give clear instructions, then the executor may make such decisions.
For instance, if a member of your family created a Will that says their company should be liquidated and divided amongst his family but didn’t specify what should happen with the rest of their assets, then it would be up to the executor to decide what happens with the remainder of the property.
What Power Does An Executor Of A Will Have?
The executor of a Will has various powers. Below you will find a few:
- The executor manages your assets and any property until your beneficiaries reach a certain age. For example, if you have a home you would like to leave to your grandchildren when you pass, your executor is responsible for overseeing the property until you can legally hand them over to the grandchildren.
- Supervising the distribution of your estate. While the executor can’t decide who gets what, they can supervise the distribution of your estate. For example, if you own a bank account that you would like to be split three ways and a savings account that you would like to go to one specific person, the executor is responsible for distributing all assets and accounts as you have instructed. Additionally, if your house needs to be sold, the executor may need to sell it through a probate sale. However, anything that you don’t specify in your Will must still be distributed within the confines of your Will.
- Handling asset inheritance as you’ve specified in your Will.
- Validating your Will if someone contests it in Probate Court.
- Paying for any taxes, debts, or expenses as part of your estate.
An executor of a Will has a large amount of power over the estate. Legally, they are responsible for making many decisions regarding the distribution of any estate assets.
Some of these powers are:
- Hiring a Probate Attorney to assist with estate administration
- Collect and distribute estate assets
- Selling any estate property
- Paying any debts and taxes
An executor also has the power to not act as the executor even if they’re named in your Will. If this is the case, the court will appoint a new executor who will have the same power as the original executor.
Can You Challenge The Power Of An Executor Of A Will?
In most instances, the executor has the final say because they are following your wishes as instructed in your Will. However, if an asset is contested in court, the court would have the final say. Because of this, the executor isn’t making decisions about what happens with your assets but rather following the instructions you provided them in the Will.
What An Executor Cannot Do
There are various things that an executor cannot do. Since the executor must execute your Will as best they can, they cannot change the names of beneficiaries after you are deceased or during your lifetime. For example, if you name your children to receive your assets, the executor cannot do anything to change it.
An executor also cannot stop any heirs from contesting the Will. For example, if an heir believes the Will is inaccurate or thinks it was signed under false pretenses, then they have the right to contest the Will in probate court, and the executor cannot tell them to stop.
The executor cannot sign a Will for the deceased. If you pass away without signing a Will, no one can sign one for you after you pass. If you created a Will but did not sign it before you passed, then it wouldn’t hold up in court because of the fact that the deceased did not sign it.
Lastly, the executor cannot begin distributing your assets until you have passed away.
Can An Executor Of A Will Decide Who Gets What If Someone Contests The Will?
If an heir contests your Will, there is nothing the executor can do to stop them from doing so. An executor legally cannot change the names of beneficiaries in your Will during your lifetime or after you have passed away. They have a fiduciary duty to execute your Will to the best of their ability in accordance with the law. For example, if you name your children to receive your assets, the executor cannot do anything to change it.
As mentioned above, if an heir believes the Will is inaccurate or thinks it was signed under false pretenses, then they have the right to contest the Will in probate court, and the executor cannot tell them to stop.
Again, the executor cannot sign a Will for you after you have passed away. If you pass without signing a Will, no one can sign one for you after you are gone. If you created a Will but did not sign it before you passed, then it wouldn’t hold up in court because of the fact that the deceased did not sign it.
Other situations may arise where an heir would like to contest the executor of a Will. When someone passes, an heir may hire an attorney to determine if the Will was valid and if the executor of the estate is valid. For example, an heir may dispute their family member’s Will if a new friend is suddenly appointed as executor when they pass away.
Can the Executor Change the Will?
No, an executor cannot change the will. Executors are legally bound to follow the instructions outlined in the will and cannot alter, disregard, or remove beneficiaries from it. Their role is to ensure that the estate is distributed according to the deceased’s wishes. If beneficiaries believe the executor is acting improperly, they have the right to challenge their actions through legal channels, such as filing a lawsuit.
Can the Executor be a Beneficiary of the Deceased?
Yes, the executor can be a beneficiary of the deceased’s estate. It is common for the executor to be a close family member, such as a surviving spouse, child, or sibling. However, some individuals prefer to choose a neutral party, like a lawyer, to serve as the executor to avoid potential conflicts of interest. It’s important to note that the legal requirements for who can act as an executor vary by state or jurisdiction.
How Much Time Does an Executor Have to Pay the Beneficiaries?
The timeline for an executor to pay beneficiaries depends on the complexity of the estate. Small, straightforward estates may be settled within six months, while more complicated estates can take several years to fully settle. Beneficiaries of specific bequests may receive their inheritance once the estate’s debts are paid. However, those receiving a percentage of the residual estate will only be paid once the estate is completely settled and closed.
Conclusion
Can an executor decide who gets what? In most instances, an executor of a Will cannot simply decide who gets what. Their responsibility is to give away your property according to the instructions you left in your Will. The executor manages your assets and any property until your beneficiaries reach a certain age, supervises the distribution of your estate, validates your Will if someone contests it in Probate Court, and more. However, if your Will is disputed, the final decision is up to the Probate Court.
Do I Need A Probate Lawyer To Help Me With The Probate Process?
If you need to go through the Probate process, it is recommended that you work with an experienced Michigan Probate Lawyer.
The Probate process in Michigan can be complicated, long, and confusing.
An attorney can help you quickly and easily navigate the process so that your loved one’s money and property can be distributed to their heirs in the manner in which they intended.
At Rochester Law Center, our compassionate and dedicated Michigan Probate Lawyers are experienced in all matters of Probate Administration and serve every county in the state of Michigan.
We make Probate fast, easy, and stress free by acting as your guide through the complicated paperwork and legal proceedings you’ll undoubtedly be facing throughout the Michigan probate process.
We understand the intricacies and nuances involved with Probating an Estate and can help you navigate every step of the way while keeping costs as low as possible.
Call us today at (248) 613-0007 for a free case evaluation.
Frequently Asked Questions
How long does the executor have to pay the beneficiaries?
The executor typically has around 12 months, commonly referred to as the “executor’s year,” to settle the estate and pay beneficiaries. This timeline can vary based on the complexity of the estate, the existence of debts, and legal challenges. However, delays beyond this period should be communicated with the beneficiaries, ensuring transparency.
What is an executor of a will?
An executor of a will is the person legally appointed to manage and distribute the estate of a deceased individual according to the terms of the will. Their duties include paying off debts, filing taxes, and ensuring beneficiaries receive their inheritance. The executor acts as a fiduciary, meaning they must act in the best interests of the estate and its beneficiaries.
Does an executor have to show accounting to beneficiaries?
Yes, an executor is required to provide a detailed accounting of the estate’s assets, debts, and expenses to the beneficiaries. This includes a clear record of how the estate’s funds are being distributed. Beneficiaries have the right to request this accounting, ensuring the executor is managing the estate responsibly.
Can an executor decide who gets what if there is no will?
If there is no will, the executor does not have the authority to decide who gets what. Instead, the estate is distributed according to the local laws of intestacy. These laws dictate the order of inheritance, typically starting with close family members. The executor’s role is to administer the estate in line with these legal guidelines.
Can an administrator of an estate be a beneficiary?
Yes, the administrator of an estate can also be a beneficiary. In cases where there is no will, a court may appoint a close relative to act as the administrator, and they can inherit from the estate. The administrator is still bound by the legal duties to fairly manage and distribute the assets.
Can the executor of a will also be a beneficiary?
Yes, an executor can also be a beneficiary of the will. This is a common scenario where a close family member is named both as an executor and as a beneficiary. The executor must still perform their duties fairly and in the best interest of all beneficiaries, avoiding any conflict of interest.
Does an executor have to follow the will?
Yes, an executor is legally obligated to follow the terms of the will. They must ensure that the deceased’s wishes regarding the distribution of assets, property, and bequests are carried out as specified. If the executor fails to follow the will, they could face legal consequences.
Can an executor sell property?
Yes, an executor can sell property as part of their duties, but this must align with the instructions in the will or be necessary to pay off debts and expenses of the estate. The executor must ensure that any sale is in the best interest of the estate and beneficiaries.
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