What is the extent of the power an executor has in carrying out the wishes in a will?

My father recently passed away leaving an estate of approximately 1.5 million. I have 3 brothers. We are to share equally with some adjustments for what each of us owed him. My brother Ron and I would like to partner up and keep the house. Between us we should have about 675,000 coming. My brothers Terry executor and Mark want to sell the house. My dad left the house approximate value 425,000 to Mark but he doesn’t want it. Terry won’t even consider letting Ron and I have the house, even though in my opinion it would benefit all of us. For example, no sales commission, eliminate uncertainty over when the house sells and for what amount, no issue over the house being vacant, no moving, free up 200,000 that we are holding for me to buy a house I lived with dad and took care of him for several years–he had dementia. Mark and Ron could use the money. Mark owes his ex-wife 35,000 which she is constantly hounding for. We live in Montana. The house is 30 years old and thus probably won’t bring full price in a sale. Every month it’s in our possession it costs us about 450 in taxes, insurance, and utility bills.

Asked on October 12, 2017 under Estate Planning, Montana


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

The executor MUST follow out the wishes as set forth in the will; he cannot deviate from them, even if it would be beneficial and logical to do so. If the will specifically left the house to Mark, the house goes to Mark; the executor cannot leave it to other beneficiaries, even if they are willing to given Mark equal or greater value from their own inheritances for it. Once Mark inherits (once the estate is settled and title goes to him), Mark can then sell the house to whomever he wants for whatever terms he and they agree to--but not until the estate wraps up, the will's instructions have been followed, and it is Mark's house.

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