February 2, 2006 8:02 AM   Subscribe

Obligations of an executor of a will: If I'm named the executor of a will, and that will dictates all sorts of needlessly complex things like "form this trust" and "disburse these funds over 27 years", am I stuck with all that work?

Mortal and ethical gray area aside, if I were the executor of a will I recently read, and knowing that the decedent wasn't necessarily of "sound mind", I would try to act in the estate's best interest, splitting up the estate's property between the decedent's two children equally (assume the children are fully expecting to be equal beneficiaries). Am I legally obligated to honor each and every provision of a will? Is there a procedure to set a will aside? I know, chances are that you, dear reader, are not a lawyer, but there's a chance that you are, or that you've been through this. For the record, this is a matter in Illinois, USA, not international.
posted by Merdryn to Law & Government (15 answers total)
You might find it useful to read the Illinois statutes to check as to what procedures exist for setting a will aside and what your obligations are if the will is valid. Invalid wills usually result in application of the intestacy rules. Was the person not of sound mind when the will was made or when he died?
posted by amber_dale at 8:19 AM on February 2, 2006

IANALY [yet] but I suspect you can receive reasonable compensation from the estate for your time (keep records), and may be able to outsource some work. Needless to say, you should talk with an Illinois lawyer experienced in the field.
posted by exogenous at 8:21 AM on February 2, 2006

You can't be forced to be the executor if you don't want to. However, if you do choose to be the executor, I don't think you can just unilaterally decide that the will is invalid and ignore its provisions.

However, if you're fine with the provisions of the will being carried out, it's just that you don't want to have to do all that work, I believe you can hire someone to handle it for you, and that person's fees generally come out of the estate.

IANAL, of course.
posted by DevilsAdvocate at 8:21 AM on February 2, 2006

Your job isn't to act in the beneficiaries' best interests, it's to execute the will. You are obligated to do the best you can to honor the will, unless you get a court to set aside any or all of it. IANAL but my Mom passed away recently so I've been thrown into all this too.
posted by voidcontext at 8:25 AM on February 2, 2006

Ditto on the you don't have to be the executor if you don't want, and on the thisisnotlegaladvice disclaimer.
posted by amber_dale at 8:29 AM on February 2, 2006

Hire an experienced trusts and estates lawyer to handle the provisions and codicils of the will if you find them too burdensome. The lawyer will pay himself out of the will. Your job is just to keep an eye on the lawyer. This is not legal advice.
posted by Falconetti at 8:47 AM on February 2, 2006

Even if you didn't find the provisions of the will to be burdensome to do on your own, it would still be smart to consult an attorney, paid out of the estate, to help understand what to do to make sure the estate is settled properly.
posted by Good Brain at 8:59 AM on February 2, 2006

You can resign as executor or trustee, or both. Check with an attorney though.
posted by terrapin at 9:12 AM on February 2, 2006

Many banks have trust officers that will take care of the details for you. For a fee, of course.

Here in TX, "reasonable compensation" is considered to be up to 1% of the amount in the trust. Some states calculate "resonable compensation" based on how much the trust pays out every year.
posted by whatnot at 9:27 AM on February 2, 2006

IANAL, TINLA. Some of the effective legalities might well depend on non-legal stuff. And some of the extra-legal or non-legal aspects of this will depend on how much you know about the people involved.

Say the will says to form this trust and pay out over 27 years, and so on, but the only beneficiaries are the two children, and you know for abso-fucking-lutely certain that the two kids would rather just split the estate down the middle right now.

Now, if you do that and ignore the will, who on earth is going to sue you? Who would have standing to file? Someone can't sue you unless they've been harmed by your actions, AFAIK, and if all the beneficiaries are happy, there's nobody harmed.

Of course, if you know that the situation is different, and setting the will aside and splitting the estate will make at least one person worse off, then that's a whole different kettle of fish.
posted by ROU_Xenophobe at 9:42 AM on February 2, 2006

In ROU's example it would still be best for all parties to get it changed legally. If all interested parties agree to a different arrangement, make it official now and save yourself worry down the line. It won't be difficult as long as everyone is one the same page.
posted by voidcontext at 11:28 AM on February 2, 2006

IAAL. Seek out a knowledgeable lawyer in your area to ask these questions. Most of the answers here have been right. You do not have to serve as executor; you can decline and the court can designate another. (You do have to go to court to get the authority to act. You cannot just act because the will designates you.) And you do have to follow the will's directions, so long as they are not illegal or against public policy.

You may not challenge the validity of the will. If there is a challenge, it has to come from someone other than the person entrusted under the will to carry out its provisions.

Where states vary is in the question of setting aside trust provisions. In some states, if all interested beneficiaries agree, this can be done. Other states enforce the directives of the decedent, on the theory that the state and its courts should do so even if no one else wants to do so.

In the latter states, it is possible that there may be some wills in which the provisions are so far out that the court would be willing to modify them to a more reasonable level. All of this requires knowledgeable legal counsel, that you pay for.
posted by yclipse at 1:50 PM on February 2, 2006

yclipse, do you happen to know if California is one of those states? Because my father (in his living trust) left one of my brothers less than the rest of us, and we're all agreed on remedying that. Can't we just agree to split it three ways? Who would complain?
posted by languagehat at 3:02 PM on February 2, 2006

No, I don't.

The idea behind saying no to your alternative is that the decedent had a reason to place restrictions on the distribution, and that plan should be honored. As to "who would complain?", the court would consider the interests of contingent beneficiaries - children of the three primary beneficiaries - as well as that of the primaries.
posted by yclipse at 4:48 AM on February 3, 2006

There are no contingent beneficiaries; none of us have kids or are likely to. My father just didn't particularly like one of us. Is that a good enough reason for him to get the shaft?
posted by languagehat at 5:31 AM on February 3, 2006

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