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My sister is the Executor of my Uncles will.

Texarkana, TX |

He had no kids and his estate is supposed to be split evenly between all of his nephews and nieces. Can my sister say my Uncle told her to do something, but it is not in the will?

What if she says our Uncle told her to hold back what I borrowed from him years ago( even though he told me not to worry about it) and that what she is saying is not written in the will.

Attorney Answers 3


  1. I assume based on the question that things must be evenly split but she is doing otherwise? The law is that the will has to be followed as closely as possible. However not every situation is addressed in every will and an executor often has to use personal discretion - especially with dividing up personal property and what not. The parties also may agree to do things a bit differently but that is a settlement. If things cannot be agreed upon you may need to ask a court to decide for you but that is costly and time-consuming.

    This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/


  2. Attorney Zelinger is correct. Your sister has a duty to follow the terms of the will, but there is some discretion. For example, as long as the valuation is the same, your sister could distribute one item of tangible personal property (a grandfather clock) to a beneficiary your uncle requested orally, while giving other beneficiaries items of equal value. Good luck to you.

    This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.


  3. Generally speaking, the executor must follow the terms of the will and codicils offered and admitted to probate, and the executor is not allowed to deviate from the written terms.

    In Texas, for some inexplicable reason, there is no statute as there is in other states allowing a testator to make a separate list disposing of items of tangible personal property without formally amending the will, so it is common for Texas attorneys to include a provision in the will allowing the executor to distribute such items according to the testator's separate instructions. Of course this creates other problems (i.e., the executor has a power of appointment that may or may not have fiduciary duties attached). That said, such a provision is usually limited to tangible personal property. You would have to look at the terms of the will.

    NOTICE: The foregoing is provided for general informational purposes only and is not intended to create, and should not be construed as creating, an attorney-client relationship. Legal advice that you rely upon in making important decisions should only be obtained from direct communications with a lawyer licensed in your jurisdiction after there has been a full disclosure of all of the relevant facts. That said, you should never provide information that you intend to be confidential or privileged on a forum such as this, and you should never rely on information provided here as a substitute for such legal advice. Also, please note that any U.S. tax information provided above is not intended to be used, and may not be used, for the purpose of avoiding penalties imposed under the U.S. Internal Revenue Code or for promoting, marketing, or recommending any portion of this communication to any party.

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