What Happens if an Executor Doesn't Follow the Will?

Part of estate planning is naming an executor of your last will and testament. An executor (called a personal representative in Arizona) is the person who manages the estate through the probate process. Some people choose a professional, such as a corporate trustee or licensed fiduciary, who clearly understands the executor’s legal responsibilities, while others may select a friend or family member. Either way, it is important to choose an executor that is familiar with Arizona probate laws.

An executor has a fiduciary duty to the beneficiaries of your estate, but what happens if they do not follow the will? Sometimes executor misconduct can be settled privately with the executor, but other times you may need to take the issue before a judge or commissioner in the probate court.

Executor’s Duties and Responsibilities

A personal representative has significant responsibilities to the deceased’s estate and can face legal trouble or other consequences for not probating a will. Among the executor’s duties are:

● Notifying creditors – Notice of probate must be provided to the decedent’s creditors. Known creditors may be notified by mail, and newspaper ads must be run so that any unknown creditors are notified and can petition the estate for payment.

● Transferring non-probate assets to beneficiaries – Not all assets must go through probate. Life insurance, retirement accounts, property held in joint tenancy, or other accounts that list specific beneficiaries can be transferred immediately.

● Value assets – The executor must have the estate’s assets appraised and inventoried.

● Settle debts – The executor must pay the estate’s liabilities from the estate’s assets. Those liabilities can include outstanding debts, medical expenses, funeral expenses, taxes, and any probate or legal fees.

● Distribute the remaining assets – Once all liabilities have been cleared, the executor must distribute the remainder of the estate’s assets according to the terms of the will.

Challenging an Executor’s Actions

Can the executor ignore the will? Many heirs wonder what happens when an executor doesn’t follow the will or seems to ignore their fiduciary duties. Here’s what to do if you have concerns about the personal representative’s conduct:

● Consult an experienced probate attorney in Arizona – A knowledgeable lawyer can pinpoint any laws the executor broke or obligations they failed to meet. Bring any evidence you have of financial or other misconduct to your lawyer.

● Provide notice to the executor – If there is actual misconduct, then you may provide notice to the executor. In some cases, the dispute may be settled out of court. However, if court action is required, you will have to file a Petition with the probate court and the court will subsequently set a hearing.

● Hearing before a probate judge – The personal representative must provide an accounting to the court, unless waived by all beneficiaries. This accounting will allow the judge to determine whether there have been any malfeasance, financial misdeeds, inconsistencies, fraud, or inaccuracies. Depending on the judge’s conclusions, the judge may remove the personal representative and appoint a new executor.

Preventing Executor Disputes

You may be able to avoid disputes with a personal representative by hiring an independent party to serve as executor of the will. A professional knows Arizona probate laws and could prevent costly mistakes in settling the estate. It can also give you peace of mind knowing that your loved ones will not be squabbling over your estate after you pass.

Get Help from the Estate Planning Lawyers at Brown & Hobkirk, PLLC

Is your relative’s executor being secretive? Or do you need help because the executor is not communicating with beneficiaries? Personal representatives are duty-bound to be transparent and honest while managing someone’s estate. If you need help with an executor dispute, contact Brown & Hobkirk, PLLC, to speak with a trusted probate attorney in Arizona.