From Our “Ask a Question,” Mailbag: “My father died, and my uncle is the executor. The Will says that we all get equal shares, but he is giving all my dad’s watches to my brother. Does the Executor of a Will Have the Final Say?”
Probate Lawyer, Peter Klenk
Does the Executor of a Will Have the Final Say?
When a person dies, there is a process to make sure the assets pass to the correct people. This process is called Probate. In most states, the person who oversees this process is called the Executor.
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In your case, because your father has died, your uncle, as Executor, now has the duty to secure your father’s assets. Further, he has the fiduciary duty to divide and distribute the assets as the Will directs.
Often the Will is specific. For example, “I give all my jewelry to my daughter, Jane.” In this example, the Executor must give all the jewelry to Jane. If there is another sister, she gets none of the jewelry unless Jane wishes to share. The Executor has no authority to give Jewelry to the second daughter, no matter how unfair it may seem.
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What If the Will is Not Specific?
In almost every Will, some assets are not specifically identified. There is not enough room in a Will for everything you own. Further, if you ever sold or bought another item, you would have to update your Will. Therefore, almost every Will divides some or all the assets into shares. The beneficiaries get an equal share, but how the assets are divided is left to the Executor.
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For example, “I leave all my assets to my two children in equal shares.” The Executor then must divide the assets equally. This could be dividing every item into equal shares, which can be done easily with stocks or cash. But there is no need for the shares to be “identical” only of equal value. So when it comes to dividing up assets like jewelry, the Executor has to use some common sense. Often, the Executor lets the heirs sort out the shares themselves. But, if the heirs cannot agree, the Executor steps in.
What if You Disagree with the Executor?
If the Executor divides assets in a way that you disagree with, you have options. In your case, the Executor wants to give your father’s watches to your brother and, perhaps, an equal amount of cash to you. While this satisfies the need for equal value, the watches are specific, identifiable items that may have emotional value for you.
The Executor has broad power to divide the assets, but he isn’t the final word. If the Executor will not listen to your concerns, you have the option of having one of our Estate Litigation Attorneys bring the matter to a judge. The judge determines if the Executor is reasonable. In this case, the Executor would be hard-pressed to convince the judge that your father’s watches cannot be divided up so that you can at least have some memory of your father.
For more information, follow this link to my article about the Probate Process.
Does the Executor of a Will Have the Final Say?
I hope you found helpful this short article responding to the question, Does the Executor of a Will Have the Final Say. I have also included some links for more detailed information. If you have questions about Probate, contact us. Let our Probate Lawyers help walk you through what can be a confusing process. In fact, feel free to contact our office for a free consultation.
