Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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When an individual drafts a Last Will and Testament, he or she (known as the testator) will usually specify the person or entity whom they have chosen to act as the executor of the will. When the testator passes on, it is the legal duty of the executor to carry out, to the best of his ability, the directions expressly stated within that document. The executor is in charge of settling the estate, ensuring the intent of the testator is met, and protecting the rights of the beneficiaries. Other duties of the executor typically include paying any bills left by the deceased; ensuring all assets are located; taking care of funeral arrangements; closing out bank accounts and dealing with any other finances; and completing all necessary paperwork imposed by law.

When an Executor Has Discretion

The amount of discretion an executor can use when settling an estate will depend heavily on the will itself. However specific the directions in the will, the executor is bound by law to follow them. In some cases, the document will give the executor the power to use his or her own discretion in certain areas. For example, the will may give the executor broad discretion to decide when to sell the decedent’s property. In other cases, each step is explicitly planned out and it is the executor’s duty merely to complete the steps. Having said this, an executor is usually given fairly wide latitude in protecting the estate’s assets. Courts will often refuse to remove an executor when a good-faith mistake is made.

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When an Executor Makes a Judgment Call

Occasionally an executor will be faced with a situation where the duties are not clear. In these situations, it is imperative that the executor gather as much information as reasonably possible before acting. This is true even when the will allows the executor to make certain judgment calls. The reason behind this is simple: an executor is expected to carry out the intent of the testator. Failing to do so may constitute a serious breach of trust and fiduciary duty. Further, because the beneficiaries of the will have the right to hold the executor personally liable for any inappropriate actions, this breach of duty can result in civil liability. To avoid a potential lawsuit, executors should seek legal counsel if the instructions of the will are unclear, or unexpected circumstances make a plan of action difficult to complete.

Handling a Possible Breach of Fiduciary Duty

By law, an executor owes each beneficiary of a will a fiduciary duty. An executor should never willfully take action that is contrary to the instructions given in the will, nor should he ignore provisions that cause the beneficiaries’ claims to weaken. If the executor does not carry out the requirements set forth in the will, or otherwise harms the assets of the estate, the beneficiaries can challenge the actions of the executor in probate court. This is done by filing a petition to stop the executor from making a specific decision or to reverse improper actions that have been taken. By challenging the executor’s actions in court, the beneficiaries may be able to hold the executor liable for breach of fiduciary duty, as well as for the financial consequences that follow. It is important to keep in mind, however, that the appointment of an executor is one of the testator’s major decisions in the drafting of his will, and will generally receive the same judicial protection as a disposition of the will.

Unfortunately, a breach of fiduciary duty is not uncommon. This often happens when the will does not give clear direction. Will “kits” have become more widely used and legal advice has become less common in will planning, which can result in a will with sloppy, vague, or unclear instructions. A breach of fiduciary duty may also occur when the executor has a personal interest in the estate. Many individuals choose their loved ones and family members as their executors. While this is often a good idea, as the executor should be someone that the testator trusts, the testator should still be extremely prudent in making this decision. When the executor has a personal stake in the estate, there is always a chance that this will affect his or her decision-making. If a testator is unclear about choosing an executor, they should seek professional information or guidance.

Choosing an Executor

For many people, the first inclination is to entrust a loved one or close family friend with the duties of executory. However before making this important decision, it is important to consider the possible implications of doing so. You should always talk to a potential candidate at length, and then proceed carefully. These cautions may ensure that the situation won’t create complexity and stress for the executor as well as everyone else involved with the estate. Some people choose to have a neutral third party as their executor. For many testators, appointing an attorney or a financial consultant as their executor relieves the stress of the risks associated with appointing a friend or family member. If you’re considering setting up a will and you have connections with an attorney or consultant whom you trust, it is worth considering whether they offer probate services and if you would be comfortable appointing them for this task.