When the testator passes on, it is the legal duty of the executor to carry out, to the best of his ability, the directions expressly stated within that document. The executor is in charge of settling the estate, ensuring the intent of the testator is met, and protecting the rights of the beneficiaries. Other duties of the executor typically include paying any bills left by the deceased; ensuring all assets are located; taking care of funeral arrangements; closing out bank accounts and dealing with any other finances; and completing all necessary paperwork imposed by law.
When an Executor Has Discretion
The amount of discretion an executor can use when settling an estate will depend heavily on the will itself. However specific the directions in the will, the executor is bound by law to follow them. In some cases, the document will give the executor the power to use his or her own discretion in certain areas. For example, the will may give the executor broad discretion to decide when to sell the decedent's property. In other cases, each step is explicitly planned out and it is the executor’s duty merely to complete the steps. Having said this, an executor is usually given fairly wide latitude in protecting the estate's assets. Courts will often refuse to remove an executor when a good-faith mistake is made.
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As a practical matter, you would not be contesting the Will, but the executor's actions. You will need to sit down with a probate attorney who can review the Will, the alleged wrongdoing, and the court filings to date. You should do so immediately. If by "finalized," you mean that the probate is completed, your options may be extremely limited.
THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. The answer to question does not create an attorney-client relationship or otherwise require further consultation. Mrs. Cook is licensed to practice law throughout the state of California with offices in San Diego County. She is authorized to handle IRS matters throughout the United States, and is also licensed to practice before the United States Tax Court. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
You will not be contesting the will but you will be contesting the actions of
The executor for
Failing to follow the previsions of the will. Retain an attorney to
Handle the matter.
If the executor has violated the wills instructions, and has gone beyone whatever discretion the will granted, you may have the right to sue. Whether it makes sense to do so depends on details we do not have and you need to sit down with a lawyer ASAP to discuss the details.
If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer unless you sign a retainer agreement). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. Note that I am only licensed in Georgia and thus cannot practice in other states. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy. State bar rules require that I disclose my name/contact information in any communication (Glen Ashman - additional contact details linked via my profile on AVVO)