Can an Executor deviate from the wishes of the Deceased if the Beneficiaries agree?

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Can an Executor deviate from the wishes of the Deceased if the Beneficiaries agree?

My Uncle no kids left both my cousin his brother’s kid and I his sister is
my Mom a piece of property to be held jointly and each some cash. The
property is conveniently located for my cousin but not for me. Just to use
round figures, he left each of us 25,000 and the property is worth about
100,000. I really don’t want the hassles of sharing that piece of property
with my cousin, and indeed I don’t even want the property transferred into my
name. The Executor would prefer to follow the Will, transfer the property to
both of us and then let us work things out after the property is in our names,
e.g., subdivide the property, or one sells their share to the other. This is
certainly understandable, but my cousin and I would like to present the idea to
the Executor that the Estate transfer the property to my cousin and that the
Estate give me both amounts of cash so I’d get 50,000 – basically, I’m willing
to take 25,000 in lieu of my share of the property and my cousin is in
agreement. Can the Executor do this since both my cousin and I are in
agreement.

Asked on November 4, 2018 under Estate Planning, Pennsylvania

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

I am so sorry for your loss.  So the general rule is that the executor must follow the terms of the Will, although that has some wiggle room in it as well.  The Will could allow the Executor power to deviate when necessary rather than follow the Will as a road map, so to speak.  If you and your cousin wish to propose a different scenario than your Uncle originally put forth, and it is reasonable (which it sounds here), the Executor can propose the change to the Surrogate (Judge of the Probate Proceeding) and it could indeed be approved.  That would save a lot of time and money for you later.  Ask the Executor to ask the court for a conference and to propose the deviation.  Good luck.


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