Can an Executor Decide Who Gets What?

2021-05-20

who

The executor of an estate is responsible for carrying out the wishes of the deceased as expressed in their will. This includes distributing the deceased's assets to their beneficiaries. However, there are some instances in which the executor may have some discretion in deciding who gets what.

In general, the executor must follow the instructions in the will. If the will specifies that a particular beneficiary is to receive a specific asset, the executor must distribute that asset to the beneficiary. However, if the will does not specify who is to receive a particular asset, the executor may have some discretion in deciding who gets it.

The executor's discretion in distributing assets is limited by the law. In most states, the executor must distribute the assets in a way that is fair and equitable to all of the beneficiaries. The executor cannot favor one beneficiary over another without a good reason. For example, the executor cannot distribute all of the assets to one beneficiary and leave the other beneficiaries with nothing, even if the will does not specify who is to receive the assets.

can an executor decide who gets what

Executor's role in asset distribution.

Follows instructions in will.
Distributes assets fairly.
Limited discretion.
Cannot favor one beneficiary.
Must act in good faith.

Executor's decisions are subject to court review.

Follows instructions in will.

The primary responsibility of an executor is to follow the instructions in the will. If the will specifies that a particular beneficiary is to receive a specific asset, the executor must distribute that asset to the beneficiary. This is true even if the executor disagrees with the testator's decision or if the executor believes that another beneficiary would be more deserving of the asset.

The executor must also follow the instructions in the will regarding the division of the estate's residual assets. The residual assets are the assets that remain after all of the debts, taxes, and specific bequests have been paid. The will may specify that the residual assets are to be divided equally among all of the beneficiaries, or it may specify that certain beneficiaries are to receive a larger share of the residual assets than others.

If the will does not specify how the residual assets are to be divided, the executor will have some discretion in deciding how to distribute them. However, the executor must still distribute the assets in a way that is fair and equitable to all of the beneficiaries.

The executor's duty to follow the instructions in the will is not absolute. There are some instances in which the executor may be justified in deviating from the instructions in the will. For example, the executor may be justified in deviating from the instructions in the will if the instructions are illegal, impossible to carry out, or if they would result in the waste of estate assets.

If the executor deviates from the instructions in the will, the executor may be held liable for any losses that result from the deviation. Therefore, executors should carefully consider the instructions in the will before making any decisions about how to distribute the estate's assets.

Distributes assets fairly.

In addition to following the instructions in the will, the executor must also distribute the estate's assets fairly to all of the beneficiaries. This means that the executor cannot favor one beneficiary over another without a good reason. For example, the executor cannot distribute all of the assets to one beneficiary and leave the other beneficiaries with nothing, even if the will does not specify who is to receive the assets.

The executor must also take into account the needs of the beneficiaries when distributing the assets. For example, the executor may need to consider the beneficiaries' ages, health, and financial situations. The executor may also need to consider the beneficiaries' relationships with each other and with the testator.

If the will does not specify how the assets are to be divided, the executor will have some discretion in deciding how to distribute them. However, the executor must still distribute the assets in a way that is fair and equitable to all of the beneficiaries.

If the executor does not distribute the assets fairly, the beneficiaries may have a legal claim against the executor. Therefore, executors should carefully consider the needs of all of the beneficiaries before making any decisions about how to distribute the estate's assets.

Here are some tips for executors on how to distribute assets fairly:

Follow the instructions in the will.
Consider the needs of all of the beneficiaries.
Be impartial and objective.
Document all of your decisions.
Be prepared to defend your decisions in court, if necessary.

Limited discretion.

The executor's discretion is also limited by the terms of the will. If the will specifies how the assets are to be distributed, the executor must follow the instructions in the will. The executor cannot deviate from the instructions in the will unless there is a good reason to do so.

In some cases, the will may give the executor some discretion in deciding how to distribute the assets. For example, the will may specify that the executor is to distribute the assets "in a manner that the executor deems to be fair and equitable." In these cases, the executor has more discretion in deciding how to distribute the assets. However, the executor must still distribute the assets in a way that is fair and equitable to all of the beneficiaries.

If the executor is unsure about how to distribute the assets, the executor can seek guidance from the court. The court can help the executor to interpret the will and to make decisions about how to distribute the assets.

Here are some tips for executors on how to exercise their discretion in distributing assets:

Consider the needs of all of the beneficiaries.
Be impartial and objective.
Document all of your decisions.
Be prepared to defend your decisions in court, if necessary.

Cannot favor one beneficiary.

One of the most important duties of an executor is to treat all of the beneficiaries fairly. This means that the executor cannot favor one beneficiary over another without a good reason.

Executor cannot distribute all assets to one beneficiary.

For example, if the will specifies that the estate is to be divided equally among the testator's children, the executor cannot give all of the assets to one child and nothing to the other children.
Executor cannot give one beneficiary more valuable assets than another beneficiary.

For example, if the estate includes a valuable painting and a car, the executor cannot give the painting to one beneficiary and the car to another beneficiary, even if the painting is worth more than the car.
Executor cannot sell estate assets to one beneficiary for less than fair market value.

For example, if the estate includes a house, the executor cannot sell the house to one beneficiary for less than the house is worth, even if the beneficiary is willing to pay less.
Executor cannot loan estate assets to one beneficiary without charging interest.

For example, if the estate includes a large sum of money, the executor cannot loan the money to one beneficiary without charging interest, even if the beneficiary is willing to borrow the money without paying interest.

If the executor favors one beneficiary over another, the other beneficiaries may have a legal claim against the executor. Therefore, executors should be very careful not to favor one beneficiary over another.

Must act in good faith.

In addition to following the instructions in the will and distributing the assets fairly, the executor must also act in good faith. This means that the executor must act in the best interests of the beneficiaries and must not put their own personal interests ahead of the interests of the beneficiaries.

Here are some examples of what it means for an executor to act in good faith:

The executor must disclose all of the assets of the estate to the beneficiaries.
The executor must keep accurate records of all of the transactions that they conduct on behalf of the estate.
The executor must make all decisions about the estate in a careful and prudent manner.
The executor must avoid any conflicts of interest.
The executor must be honest and forthright with the beneficiaries.

If the executor does not act in good faith, the beneficiaries may have a legal claim against the executor. Therefore, executors should always act in the best interests of the beneficiaries and should avoid any actions that could be construed as self-dealing or a breach of their fiduciary duty.

Here are some tips for executors on how to act in good faith:

Always put the interests of the beneficiaries first.
Be transparent and honest with the beneficiaries.
Keep accurate records of all of your transactions.
Avoid any conflicts of interest.
Seek advice from professionals, such as lawyers and accountants, when you are unsure about how to handle a particular situation.

FAQ

If you have questions about an executor's authority to decide who gets what, here are some frequently asked questions and answers:

Question 1: Can an executor decide who gets what if the will does not specify?

Answer 1: In general, the executor must follow the instructions in the will. However, if the will does not specify who is to receive a particular asset, the executor may have some discretion in deciding who gets it. However, the executor must still distribute the assets in a way that is fair and equitable to all of the beneficiaries.

Question 2: What factors should an executor consider when distributing assets?

Answer 2: When distributing assets, the executor should consider the following factors:

The instructions in the will.
The needs of the beneficiaries.
The beneficiaries' relationships with each other and with the testator.
The value of the assets.
The tax implications of the distribution.

Question 3: Can an executor favor one beneficiary over another?

Answer 3: No. The executor cannot favor one beneficiary over another without a good reason. For example, the executor cannot distribute all of the assets to one beneficiary and leave the other beneficiaries with nothing, even if the will does not specify who is to receive the assets.

Question 4: What happens if an executor does not act in good faith?

Answer 4: If an executor does not act in good faith, the beneficiaries may have a legal claim against the executor. Therefore, executors should always act in the best interests of the beneficiaries and should avoid any actions that could be construed as self-dealing or a breach of their fiduciary duty.

Question 5: Can an executor be removed?

Answer 5: Yes, an executor can be removed by the court if the executor is unable or unwilling to perform their duties, or if the executor has breached their fiduciary duty. However, removing an executor is a serious matter and the court will only do so if there is clear evidence that the executor is not acting in the best interests of the estate.

Question 6: What should I do if I am an executor and I am unsure about how to distribute the assets?

Answer 6: If you are an executor and you are unsure about how to distribute the assets, you should seek advice from an attorney. An attorney can help you to interpret the will and to make decisions about how to distribute the assets in a fair and equitable manner.

Closing Paragraph for FAQ: These are just a few of the frequently asked questions about an executor's authority to decide who gets what. If you have any other questions, you should consult with an attorney.

In addition to the information in the FAQ, here are some additional tips for executors:

Tips

Here are some tips for executors on how to decide who gets what:

Tip 1: Follow the instructions in the will.

Tip 2: Consider the needs of the beneficiaries.

When distributing assets, the executor should consider the needs of the beneficiaries. For example, the executor may need to consider the beneficiaries' ages, health, and financial situations. The executor may also need to consider the beneficiaries' relationships with each other and with the testator.

Tip 3: Be fair and impartial.

The executor must distribute the assets in a fair and impartial manner. This means that the executor cannot favor one beneficiary over another without a good reason. For example, the executor cannot distribute all of the assets to one beneficiary and leave the other beneficiaries with nothing, even if the will does not specify who is to receive the assets.

Tip 4: Document all of your decisions.

The executor should keep a record of all of the decisions that they make about the distribution of the assets. This will help to protect the executor from any claims that they did not distribute the assets fairly. The executor should also keep a record of all of the assets that they distribute to the beneficiaries.

Closing Paragraph for Tips: By following these tips, executors can help to ensure that the assets of the estate are distributed in a fair and equitable manner.

If you are an executor, it is important to remember that you have a fiduciary duty to the beneficiaries of the estate. This means that you must act in the best interests of the beneficiaries and must avoid any actions that could be construed as self-dealing or a breach of your fiduciary duty.

Conclusion

An executor has a lot of responsibility when it comes to distributing the assets of an estate. The executor must follow the instructions in the will, distribute the assets fairly, and act in good faith. If the executor does not fulfill their duties properly, they may be held liable for any losses that result.

Here are some key points to remember about an executor's authority to decide who gets what:

The executor must follow the instructions in the will.
If the will does not specify who is to receive a particular asset, the executor may have some discretion in deciding who gets it.
The executor must distribute the assets in a fair and equitable manner.
The executor cannot favor one beneficiary over another without a good reason.
The executor must act in good faith.

By following the tips in this article, executors can help to ensure that the assets of the estate are distributed in a fair and equitable manner.

Closing Message: Remember, the role of an executor is to carry out the wishes of the deceased as expressed in their will. By following the instructions in the will, distributing the assets fairly, and acting in good faith, executors can help to ensure that the estate is settled in a timely and orderly manner.