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An executor of a will cannot remove a beneficiary. An executor’s job is to execute the will’s provisions. If the testator has named beneficiaries in his will who he wishes to receive his property, the executor has no choice but to follow the testator’s wishes, as stated in the will and distribute said property to the beneficiaries, after payment of the estate’s debts and expenses.
Instances When Beneficiaries Do Not Receive Their Inheritance
Despite the fact that the executor cannot remove beneficiaries, there can still be instances when a beneficiary will not receive his designated inheritance. This can happen when the estate´s assets are not enough to cover the estate´s debts and expenses. In this case, there may be beneficiaries who may not receive their inheritance.
Supposing that after payment of estate debts and expenses, a small amount is left for the estate. The remaining estate assets are not enough to satisfy all the distributions. In that case, although the executor did not remove a beneficiary, a beneficiary may not receive his inheritance if he is the last to receive anything under the order of liability in EPTL § 12-1.2.
Under this provision, the following receive priority, in the order provided, unless the will shows that the testator specifically preferred certain beneficiaries over others:
- Surviving spouse for dispositions that qualify for the estate tax marital deduction;
- Specific beneficiaries;
- General beneficiaries;
- Residuary beneficiaries; and
- Distributees.
For example, if after payment of estate debts and assets, the remaining estate is $10,000, and the testator gave $4000 to his surviving spouse, $4000 to his daughter, $2000 to his son, and the residuary estate to his brother, the brother, who is a designated beneficiary, will not receive anything. Under the law, specific beneficiaries have priority over residuary beneficiaries. Since the estate was only enough for the specific beneficiaries, the brother who was a residuary beneficiary received nothing.
This is an example of where the executor did not remove a beneficiary, but the execution of a will resulted to a beneficiary receiving nothing.
Instances When an Executor of a Will Can Choose the Beneficiaries
There have been some instances where an executor was given the choice to choose beneficiaries from a class of beneficiaries. For example, an executor may be granted the power to choose a charity or 501(c)(3) non-profit organization as the residuary beneficiary. Here, although the executor is not given the power to remove a beneficiary, the executor can choose a beneficiary.
Ultimately, what the executor can or cannot do depends on the testator’s wishes, as expressly provided in the will. If there is any doubt, the court can be requested to interpret the provision in the will to determine the testator’s express intent and preference.
Should you need in the interpretation of a will or any matter pertaining to wills, we at the law offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY, and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
