What Happens if the Executor Does Not Follow the Will?

When an executor is nominated to handle a will, they must sign a legal document to state that they will take the responsibility of organising and distributing the testator’s estate. By law, they are required to follow the will and ensure that all the named beneficiaries receive what the will states. If an executor does not do this, those affected may be able to make a significant claim against them and have them removed.

In the following guide, we will outline what action you can take if you have been affected by an executor who has not performed the estate administration in an appropriate manner, and how you can then ensure the process is put back on track.

What are the Responsibilities of an Executor?

Executors have a number of responsibilities that they agree to undertake when the testator dies. It is their job to organise and resolve these, and not doing so or making mistakes can lead to the process of the administration of the will taking much longer. Therefore, it is important that executors understand their responsibilities before they agree to do the job.

The following is a list of possible executor responsibilities:

• Registering the death of the testator
• Arranging the funeral
• Contacting the beneficiaries
• Valuing and distributing the estate
• Organising probate
• Settling debts
• Organising the testator’s finances and paying relevant taxes
• Keeping accounts and records of the estate
• Distributing the estate to the beneficiaries

These responsibilities do not apply in every case, so executors should ensure they know what they will be expected to do. If they do not take these responsibilities seriously, and carry them out incorrectly or not at all, those affected may be able to make a claim against them and have them removed from their position.

Does an Executor Have to Follow a Will?

The short answer to whether an executor must follow a will is "yes," but as with many aspects of law, the issue can be more nuanced than it initially appears.

An executor is legally bound to administer the estate in accordance with the will's provisions and the law. This involves a range of duties, from paying off debts and taxes to distributing assets to beneficiaries as specified in the will. Failure to adhere to these responsibilities can result in legal consequences, including personal liability for any losses incurred by the estate or its beneficiaries.

Sometimes, a will may contain ambiguities or unclear instructions. In such cases, the executor may need to seek legal advice or even apply to the court for clarification. While the aim is always to honour the testator's intentions, there may be instances where interpretation is required.

While an executor may personally disagree with the provisions of the will, personal opinions don't provide a basis for deviating from the testator's instructions. The executor's role is to carry out the wishes of the deceased, not to make moral or ethical judgements about those wishes.

There are very limited circumstances under which an executor can deviate from the will's instructions. These usually require court approval and typically occur when:

1. All beneficiaries are in agreement to change the distribution of the estate.
2. There are practical impossibilities or legal prohibitions against carrying out certain provisions of the will.
3. There are insufficient funds to cover debts and legacies, requiring a different distribution approach known as 'abatement'.

Can I Claim Against an Executor if They Do Not Follow the Will?

If a beneficiary does not feel as though they have received their full entitlement or the executor has not carried out the wishes of the testator, they may be able to claim against the executor. 

Before the executor distributes any of the will or estate, they should first make sure that they have calculated and recorded the total value of it and the value that will go to each beneficiary. They should not begin the distribution process until they are completely confident that the amount is correct, and they will often require the beneficiaries to confirm their figures before distributing.

Claims can be made if an executor has not followed a will, or carried out their responsibilities properly.

They should also make sure that they understand and follow the wishes of the testator, according to the will, despite any of their own personal reservations. If an executor has an issue with the will, they should seek legal advice, not take it into their own hands. 

Even if the executor’s misconduct is a mistake, you may be able to claim against them. To do so, you should seek assistance from legal professionals, such as the will disputes solicitors from JMW, who will be able to advise you on whether you may be able to claim and how to go about it.

What Happens if an Executor Doesn't Contact the Beneficiaries on the Distribution of the Will?

Beneficiaries have the right to be informed about the administration of the estate assets and to receive their inheritance in a timely manner. If an executor fails to contact them, beneficiaries can take various steps to assert their rights:

• Request information: initially, a beneficiary may formally request information and updates from the executor. This is often the first step before taking any legal action.
• Legal advice: if the executor remains unresponsive, the beneficiary may seek legal advice to explore their options, which could include compelling the executor to provide an account of the estate.
• Court intervention: as a last resort, a beneficiary can apply to the court to have the executor removed for failing to fulfil their duties. This is a serious step and usually taken as a last resort.

If you are struggling with the executor of a will not contacting beneficiaries, you should make sure to seek help from will disputes specialists.

Can I Remove an Executor From a Will?

If you are looking to remove an executor from a will, you may be able to do so if you believe they have not upheld their responsibilities or are not performing in a professional manner. You may want to consider this option if time is a higher priority to you than money, as a financial claim could take a long time to process fully, while removing and replacing the problematic executor may allow you to move forward with the process sooner. You will need to give them notice if you intend to try and remove them, so you should always seek professional advice first.

For more detailed information on how you can remove an executor from a will, read our guide on the topic.

Regardless of the purpose of your legal action, you will be required to provide evidence and an argument as to why you believe the executor has acted improperly, and how you have been affected. To do so properly and ensure success, seek the advice and guidance of professional wills disputes solicitors who will be able to advise on whether your position is strong enough to have the executor removed.

When you begin the process of making a claim with the team at JMW, we will be able to assess your situation and advise on your chances of success and what you will need to do next. We will support you throughout the whole process, helping you to gather the necessary evidence, facilitating communications between you and the other party and representing you in court if it comes to it.