Dave Frees: The fourth one is the failure of the executor to follow the will. I cannot tell you how many times people come to me and they are in trouble and the reason is, that they got this will and it was the right will and they probated it and they followed the notices and they did all the things that they were supposed to do, but then they did not follow what the will says. Many people, either because they are inattentive to the will or they have misread it or misinterpreted it, make this mistake. It is very common for a will to say “my three children should divide my personal things up among themselves, or my executor gets them and my executor should give them out according to a memo”.
And if for some reason, the executor will sell all of the items, well that is not what the will says, and executors do expose themselves to liability again if they do not follow the will. Many times you will see a specific bequest, pay $3,000 to Uncle Joe, pay $5,000 to this charity. Specific bequests do need to be paid, as long as there are sufficient funds to pay the creditors and the tax. Specific beneficiaries do need to pay, be paid within a relatively short period of time, or interest starts to run on those. So executors need to review the will and create a check list for themselves or your counsel will help you do this if you hire a lawyer, and establish a clear order in which they need to do things and clearly understand what the will says.
Now I’m going to make a suggestion that to a lot of people may sound crazy, but if the will is ambiguous, going to court and going through the probate process, the court supervised part is not a crazy thing. Where a will is drafted improperly or where there is some confusion about the language, and even language that seemed plain to the mom or dad, or the grandparent, whoever passed away, might be confusing in terms of modern interpretation or personal circumstances. Now, where that is the case, you can go to court and say to the judge, “Your Honor, this is how we read this will, and this is how we interpret it, and we have given everybody notice”, and if nobody shows up the judge is probably going to interpret it the same way. And, you are protected.
But if somebody shows up and says I interpret it differently, then you’ve put the issue before the court, and you are in the clear because the court will decide how it is to be interpreted. It is when you the executor makes an independent judgment about it is when you run into potential problems. So sometimes the court can be your friend. Everybody tends to think when we read these articles about avoiding probate, the court is the enemy, and you know that it can increase costs, and that is true, but sometimes heading off a problem at the pass costs a few hundred dollars or a few thousand dollars, and failing to solve the problem can be much, much more expensive. So, failure to follow specific instructions of the will is a common mistake and unfortunately one that subjects executors to personal liability again.
David M. Frees III Esq.
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