Can an Independent Executor Alter How my Property is Distributed?
A man who was named independent executor in a Will called me. Someone told him that as the independent executor, he had the right to distribute Testator estate any way he wished. He was calling to ask if that was true.
It is not!
The role of an executor is to carry out to carry out the Testator’s wishes. After initiating a probate proceeding and receiving Court authorization to act on behalf of the estate, an executor has a duty to:
- collect and inventory the testator’s assets;
- manage and safeguard the assets during administration;
- receive and pay the valid claims of creditors and tax collectors;
- pursue any claims owing to the estate; and
- distribute the remaining assets to the decedent’s beneficiaries as the testator instructed in the Will.
An executor has a legal obligation to follow the testator’s directions. The executor may not change the beneficiaries of the will or how and to whom the testator’s property is distributed. In fact, executors have a fiduciary duty to protect the interests of the estate’s beneficiaries.
The fact that a Will names an “independent executor” does not mean that the executor has the authority to disregard the testator’s wishes. It simply means that in carrying out the executor’s duties, the executor may act almost entirely without the supervision or control of the probate court.