The short answer is no, an executor in New Zealand cannot decide who gets what. The executor must comply with the terms of the will, or if there is no will, with the intestacy rules. This article clarifies the executor’s responsibilities and limitations regarding the distribution of estate assets.
Understanding the executor’s role
An executor is appointed to manage and settle an estate after someone passes away. Their primary duty is to execute the wishes of the deceased as expressed in their will. Crucially, executors do not have the authority to arbitrarily decide who receives which assets from the estate. Their role is to ensure that the distribution of assets, including money and property, is carried out exactly as stipulated in the will.
It is only the wishes outlined in the will that are relevant; verbal or informal wishes expressed during the deceased’s lifetime are usually irrelevant unless the will specifically references such wishes. In cases where other wishes were documented, such documents might be validated as a will to give effect to those terms. To learn more, read these articles on validating wills and how to determine if a document can serve as a will.
Executor’s duties and limitations
- Following the will: The executor must adhere strictly to the instructions laid out in the will. They cannot alter the beneficiaries’ entitlements or change the distribution plan of the estate.
- Probate process: The executor is responsible for initiating the probate process, which is required to administer the estate. However, in the case of small estates, probate may not be necessary. For more information, refer to the article on probate.
- Paying debts and taxes: Before distributing assets, the executor must settle any outstanding debts and taxes owed by the estate. If the estate has insufficient assets to cover all debts, taxes, and bequests, it’s not up to the executor to decide who receives what – strict legal rules determine the order of payment. Learn more about this situation here.
Executor’s accountability and liability
Executors can be held legally accountable if they fail to adhere to the terms of the will. They can face legal action from beneficiaries for mismanagement or unauthorised distribution of assets. It’s important to note:
- Beneficiaries’ legal recourse: If beneficiaries believe the executor is not complying with the will’s terms, they have the right to challenge the executor’s actions in court.
- Personal liability: Executors can be held personally liable for losses incurred to the estate due to mismanagement or failure to follow the will’s directives. Read about the claims that can be made against executors
Challenging executor decisions
If there is a concern that an executor is not following the will, beneficiaries have several options:
- Direct communication: Beneficiaries can start by discussing their concerns with the executor to seek clarification and resolution.
- Legal advice: If direct communication is unsuccessful, seeking legal advice is the next step. Often, a lawyer writing to the executor demanding they act in accordance with the will’s terms can be sufficient to resolve the issue.
- Court intervention: In extreme cases, beneficiaries may need to take legal action to remove the executor or challenge their decisions. For guidance on how to proceed with removing an executor, read the article on the process to remove an executor. If you’re considering making claims against an executor for mismanagement or breach of their duties, this article on executor misconduct claims provides comprehensive information.
Conclusion
An executor does not have the discretion to decide who gets what from an estate. Their role is to faithfully execute the wishes of the deceased as outlined in the will. Beneficiaries should be aware of their rights and the executor’s responsibilities to ensure the estate is administered fairly and according to the deceased’s intentions.
Crucially, only the final will’s stipulations matter, even if the executor was informed of different wishes during the deceased’s lifetime. In cases where other wishes were documented, such documents might be validated as a will to give effect to those terms. In cases of uncertainty or disputes, seeking legal advice early is important, as it can prevent beneficiaries from suffering greater losses.