The time immediately following the death of your family member or loved one is a time that is fraught with emotion. You will be going through an emotional time and will need to grieve, which can take many forms and take a long time. The grieving process can be further complicated by having to participate in probate. Probate is the process by which the assets of the estate are gathered, the debts of the estate are paid, and the remainder of the assets are distributed according to the terms of the will or according to the Minnesota laws of intestacy, if there is no will. The personal representative (also known sometimes as the executor) is the one responsible for taking these actions. All too often, however, disputes arise between the personal representative and the beneficiaries. In some cases, those involved in the case may need to know whether a personal representative can refuse to distribute according to the terms of the will.
The short answer is that the personal representative must distribute the remaining assets according to the terms of the deceased’s will. The personal representative has a fiduciary duty to act in accordance with the terms of the will and in the best interest of the estate. The personal representative cannot simply decide that he or she does not like the choices that the deceased made and distribute how he or she believes is better. In other words, the personal representative cannot just decide that he or she believes it is more fair to distribute the assets evenly to the deceased’s children, overriding the specific terms of the will that everything is to be left to just one child.
It is important to note, however, that the beneficiaries of the will cannot simply demand immediate payment. The personal representative has an obligation to make sure that the creditors of the estate are notified and have an opportunity to submit a claim for payment. Only after the proper and approved debts are paid and all applicable waiting periods have passed are the beneficiaries entitled to the distribution from the estate. If the personal representative is refusing or failing to make distributions even after the debts have all been paid, the beneficiaries may bring an action in the probate court to have the personal representative removed and replaced.
Let us help you understand your rights and responsibilities in probate. Call today at 651-371-9117 for a consultation.