Does an Executor Have to Follow the Will? What Happens If He Doesn’t?

A will is one of the core documents of a deceased person’s estate—it allows everyone to know the decedent’s last and final wishes. Basically, the executor has the legal obligation to ensure that those wishes are fulfilled according to the law, being responsible for taking care of the late person’s remaining legal and financial obligations. At the same time, the executor must be aware of what happens if a will is not followed.

Generally, a properly drafted document will leave specific instructions for the executor to follow to settle the estate.

Unfortunately, not all personal representatives follow these instructions. If you are a legal beneficiary of a deceased and suspect that your rights have been affected by how the executor fulfills their legal obligations, then you may want to consider what actions you can take to protect them.

In this post, we will outline what happens when a will is not followed by an executor and how you can ensure the process is back on track.

What Does an Executor of a Will Do? Can You Remove an Executor from the Will? 

When a deceased person leaves a will, this legal document should identify one person to act on behalf of the deceased’s estate. This person is what we call the estate executor (or estate personal representative).

The decedent typically designates someone — their surviving spouse, a family member, a lawyer, or any person they consider qualified to fulfill their final wishes in an appropriate manner.

When the nominated person accepts the role, they will be responsible for estate administration, paying all the estate’s debts before distributing assets to the beneficiaries.

An executor’s job also includes legally and correctly enforcing the will throughout the probate process.

Does the Executor Have to Follow the Will? 

As soon as the probate court appoints them executors of an estate, their core responsibility is to follow the deceased person’s last wishes as stated in the will.

What Happens If a Will Is Not Followed Or the Executor Does Not Want to Act? 

The personal representative must fulfill his legal obligations to represent the decedent’s estate as best as possible; otherwise, he may be held personally liable.

What can happen if he does not follow the will depends on each situation, the areas of liability are described below: 

Mismanagement of assets

Beneficiaries or creditors can hold them accountable for financial losses if an executor mishandles or misappropriates estate assets.

Failure to pay debts

Executors must settle valid estate debts and pay any valid financial claim. Failure to pay creditors in the correct order can lead to personal liability for outstanding debts.

Breach of fiduciary duty

Executors have a fiduciary duty to act in the best interests of beneficiaries. They can breach this duty by acting in self-interest or neglecting their legal responsibilities.

Neglecting tax obligations

One of an executor’s duties is to file accurate tax returns for the estate. Neglecting tax obligations can have serious consequences and make an executor personally liable for any penalties or taxes owed.

If the executor’s lack of action persists and a considerable amount of time has passed, the heirs can file a request with the probate court to have the executor removed and appoint someone else to represent the estate. The new representative can compel the executor to bring the original last will to court if it still needs to be done.

These are just a few of the obligations that an executor may have in an estate situation. Others may apply to your specific situation, and it is best to speak with a probate attorney to fully understand all the obligations in your situation.

When Is Considered a Will Invalid? 

For the will to be considered valid, it must be filed with the probate court and approved by the probate judge.

This probate process allows other potential heirs to contest the will if they believe it is invalid.

Reasons to contest a will: 

1. You feel that the will is fake or fraudulent, and you have some proof.

For example, you look at the signature page, and the signature on the will looks nothing like the deceased’s signature.

2. The wishes expressed in the will are nothing like those that your loved one openly discussed with family or friends.

Perhaps the testament was changed shortly before the decedent’s death or even on their deathbed, and the desires expressed in the new will radically differ from what was expressed in prior testaments.  

3. A person was constantly around your loved one and was exerting inappropriate influence.

When you read the will, it seems to reflect more that person’s interests, not the wishes of the deceased. This situation can be even more powerful if the person also helped your loved one draft the will.

Additionally, if the beneficiary of the testament is not a close relative or someone else that you would expect to inherit, then this may be a cause for concern. If this is a concern, then you should consult a probate lawyer for legal advice.

4. The will is missing signatures.

In Georgia, a will must be signed by the person making the testament and two witnesses. So, if the will is missing any of those signatures, it is worth looking into contesting it.

5. You believe your loved one made a will dated after the one filed with the probate court.

 If you believe the newer testament can be located, then that can be a viable reason to object and petition the court to have the older will be declared invalid.

6. You believe your deceased loved one destroyed their will, but a copy of that testament has been filed with the probate court.

Just because someone made a will once does not mean they are forced to keep it forever. If there is any evidence that the deceased destroyed the testament prior to death, it might be a reason to invalidate the copy filed with the probate court.

7. You believe your loved one lacked the capacity to sign the will.

This is one of the most difficult ways to challenge a will because Georgia law is very flexible with whether someone has the mental ability to sign a testament. In fact, if the holder of the will only had the complete mental capacity for a few minutes while signing the testamentary disposition, that may be enough to uphold the will.

That said, if you can find any evidence showing that the deceased did not have mental capacity when the testament was signed, it can be invalidated.

These are just a few examples of how to contest a will that is believed to be invalid. There are additional examples that may not be listed in this article. We recommend speaking with a probate attorney to discuss your specific circumstances and if contesting the will is the best option in your situation.

What Voids a Will?

When reviewing the signature page of an unnotarized will, two key items should be present:

• the will must be signed by the deceased.
• two witnesses must also sign the testament.

It is important to note that Georgia does not require a will to be notarized. So, yes, an unnotarized will is valid in Georgia.

If a probate attorney wrote the testament, a second document called a Self-Proving Affidavit would be attached to the will.

What Are the Consequences of Not Probating a Will?

The person named in the will as successor executor is one of many people who may be qualified to administer and manage an estate in a timely manner.

The named executor is only the first in line to do so.

If that person doesn’t want to serve or declines this responsibility, anyone may file a request with the probate court to be appointed to manage the estate.

Under Georgia law, any person in possession of a deceased person’s original will has the obligation to deliver it to the appropriate probate court.

Probate law does not require the person to probate the will but only to give it to the court.

What if a family member is hiding the will? 

If the named Executor has possession of the will and fails to file the will within the Georgia state’s deadline they may face personal liability if the heirs or beneficiaries of the estate have been financially harmed due to the failure.

However, you should know that even if a family member is hiding the will, the estate beneficiaries have some rights:

• to access information.
• to receive their share.
• to remove the estate executor.
• to receive notice.
• to challenge the executor’s actions.
• to file a lawsuit.

What if the executor is hiding the will? 

Executors have a fiduciary duty to their heirs if they fail to file a will within the Georgia state’s deadline and might be sued by the beneficiaries who suffered financial harm due to the failure.

But if you feel that the personal representative of your decedent loved one is hiding the will, the first step would be to identify what part of the process the estate is in and then decide what happens if a will is not followed.

You might find yourself in one of the following situations:

1. If the estate has been opened, the testament will be on file with the probate court, and you can obtain a copy directly from the court.
2. If the estate is not yet open, that is a more complicated – and more concerning – type of situation.

• When the executor files to open probate for the estate, you should receive a copy of the last will in the mail unless you sign a form saying you waive formal notice. If you haven’t seen the will, don’t sign that form.
• If the executor says they will not open the estate in probate court and will not give you a copy of the will, that is a major red flag, and you should take immediate action.

How to Ensure a Will Is Followed? 

According to Georgia probate law, there are a few actions that can be made to ensure the executor follows the will:

• Choosing the right executor.
• Talking to their family.
• Being precise.
• Being direct.
• Making sure the will is properly signed.
• Sending updates regularly.
• Telling someone where the testament is kept.

These are some examples of actions that can be made to ensure that the executor follows the will, but there may be others that are not listed here. We recommend speaking with a probate attorney to better understand your specific situation.

Can You Take Action Against an Executor That Fails to Act? 

When the executor fails to fulfill his legal duties, there are a few actions that you may be able to take against them:

• the court may order the executor to pay damages to fix financial harm to the estate.
• If the executor is refusing to perform a required duty, the court may order them to perform it.
• the court may order the executor not to take a specific action on behalf of the estate.
• the court may remove the executor and appoint a new personal representative.
• the court may reduce or deny compensation to the executor.

Under Georgia law, any person possessing an original will of a deceased person must deliver it to the appropriate probate court. Probate law does not require the person to probate the will but only to give it to the court.

An option may be to request that the probate court appoint someone to represent the estate and to ask the court to force the person holding the original will to bring it to the court.

Can You Remove an Executor from the Will?

Yes, in some specific situations, an executor can be removed from administering the estate.

The main responsibilities of an executor are to act in good faith and in the best interest of the estate, marshal the assets (collect all assets to be distributed), pay all the debts of the estate, and preserve assets for the benefit of the beneficiaries.

It is important to note that an executor’s action must cause serious harm to the estate to warrant removal.

Once you file a petition challenging the executor and requesting their removal, the court will set a hearing date. Prior to the hearing date, there will be period of time for discovery, to gather the necessary evidence to prove the claim.

The court may also order meditation during this time. If mediation is unsuccessful, then at the hearing, each side will have the opportunity to present their side of the story, and you will be able to request that the court grant the requests made in your petition.

This is a complicated legal process, and our firm recommends speaking with an experienced probate attorney to advise you on your specific situation.

The Next Step When Deciding What Happens If a Will Is Not Followed

In short, failure to comply with the will is an unfortunate phenomenon that complicates the fulfillment of the deceased person’s wishes and, at the same time, the succession process.

However, it is vital that you understand your rights, what happens if a will is not followed, and the appropriate steps you can take to ensure that the deceased’s wishes are respected. If you are in a similar situation and need experienced lawyers to protect your rights, contact our office at (770) 758-9733 to set up a consultation.

Disclaimer: The information above is provided for general information only and should not be considered legal advice. Our probate attorneys provide legal advice to our clients after talking about the specific circumstances of the client’s situation. Our law firm cannot give you legal advice unless we understand your situation by talking with you. Please contact our law office to receive specific information about your situation.