As a general rule, can an executor override a will? No. An executor is the person named in the will by the testator who is tasked to administer the testator’s estate upon death. The executor’s job is to carry out the wishes of the testator, and the wishes of the testator are embodied in his last will and testament.
Although the executor cannot override the will’s provisions, there are instances when the executor may deviate from the execution of the will’s provisions, such as:
- when property was devised to a beneficiary in the will, but sold before testator’s death
- when property was bequeathed or devised to beneficiaries, but the debts of the estate have to be paid first, which would reduce the amount the beneficiaries would receive
- when the will is vague and ambiguous, which would require the executor to make decisions that appear to be against the will (but such decisions must still be made with good faith)
- when the executor is confronted with a situation that is not contemplated in the will, the executor may decide on his own, but such decision must still be aligned with the best interests of the estate and its beneficiaries; or
- when all the affected beneficiaries express their written consent to a change in the will’s provisions
Beneficiary’s remedies when an executor tries to override a will
When a beneficiary feels that the executor is acting contrary to the will’s provisions or has breached his fiduciary duties, the beneficiary can compel the executor to submit an accounting, and the beneficiary can file objections to the accounting. If proven that the executor has mismanaged the assets, the executor can be liable for damages.
When should the executor seek legal counsel
The executor’s first duty is to follow the law when executing the will’s provisions. If a beneficiary seeks to be paid first before taxes are paid, that is a violation of the law, and the executor, in good faith, can override the beneficiary’s wishes. If there is a gray area, for example, the executor would like to sell real property of the estate to his relative, the executor should seek legal counsel so that he or she would not be accused of self-dealing. If found to be self-dealing, the executor can be compelled by the court to pay back all the assets used in the self-dealing transaction.
If there is any doubt at all in the execution of the will’s provisions, or there is an issue involving where someone wants to know can an executor override a will, always consult a lawyer with expertise in that particular subject matter.
If you are in need of an estates lawyer, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.