Can My Executor Disregard My Wishes?

One common question people have is whether or not the executor of an estate can disregard your Will and do whatever they want with the assets. Fortunately, there are some safeguards in place to prevent this. However, it’s important to understand the legal responsibilities of an executor and how they apply to an estate. They don’t cover everything, and the executor and other family members do have freedom to disregard some of your wishes.

All Assets Must be Disclosed and Distributed According to the Will and the Court

An executor has a fiduciary responsibility to present all assets of an estate to the probate court. They must turn over the Will and make a thorough attempt to find all assets, including bank accounts, property, vehicles, and other valuables. The executor is prohibited from benefiting at a beneficiary’s expense. This means if they take any asset that a beneficiary was to receive, they can be held personally accountable in court.

Where Executors Have Discretion

The executor of your estate, with or without approval of the rest of your family, has wide power when it comes to your funeral arrangements. While you may state that you want to be buried, the executor can have you cremated. They can bury you somewhere other than your pre-purchased lot and, in short, make any sort of arrangements they want. Unfortunately, your Will is not legally binding in this regard. However, if your executor spends a large amount of money from the estate on your funeral, the beneficiaries can challenge them in court for over-spending.

What About Sentimental Items?

Sentimental items often fall under the executor’s discretion unless you have taken steps to make them a part of the Will. This can be difficult because if you write an item into the Will and then later give that item away or decide to give it to someone else, your Will has to be fully amended to remove it. That can become costly if you change your mind often. Leaving instructions in a letter to your executor, however, isn’t legally binding, so the executor could do whatever they want with the items.

You may be able to create a personal property memorandum to specify where sentimental items go. This document is not a part of your Will, but the Will refers to it. However, these documents are not legally binding in New York. That’s where we can help. The offices of Michel F. Kanzer and Associates can assist you in protecting your assets and getting them to the right beneficiaries. Contact us today to discuss your last wishes.

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