When a person dies with a last will and testament, it becomes the duty of someone (usually someone dictated within the will itself) to execute the will of the deceased. On the one hand, it is an honor to be trusted with carrying out someone else’s will. On the other hand, it comes with a lot of work and potential liabilities, and it can be helpful to know what you’re getting into, in case you or someone you know is making a decision about who they want to be the executor of their estate.
Someone who has been asked to carry out the will of a deceased person, known as an executor (if male) or executrix (if female), has a legal duty to carry out the decedent’s wishes as set forth in the will. This is formally known as a fiduciary duty, and it essentially requires the executor to place the interests of the person they’re representing (in this case, the deceased) over their own personal interests. This duty is similar to duties that lawyers owe their clients, that doctors owe their patients, and that business executives owe their company.
The reason an executor or executrix has this fiduciary duty is because their position is extremely easy to abuse. When you become the executor of an estate, you are entrusted with everything that person had when they are alive, with the expectation you will distribute that property in the way the will allocates it. However, the decedent is not around to supervise the executor, meaning that stealing from their estate can become a real temptation. An executor’s fiduciary duty makes him or her legally responsible for any misconduct they engage in with respect to the decedent’s estate. Not only could they be made personally liable for financial losses to the estate arising out of their misconduct, particularly egregious cases may get the attention of local prosecutors and possibly lead to criminal charges.
If you are thinking about writing a will and want to learn more about protecting your estate after you’re gone, you’ll need the guidance of experienced estate attorneys to help you. The estate planning lawyers at Hunziker, Jones & Sweeney are experienced in all aspects of estate planning. For more information or to schedule a consultation with our New Jersey estate planning lawyers, call our Wayne, New Jersey law office at (973) 256-0456.