Legal Question in Wills and Trusts in North Carolina
Can an Executor Distribute Contrary to Term of Will?
My husband's grandmother passed away recently, leaving a valid will. The will has been filed in probate court. Her two children and her grandson (my husband) are the beneficiaries of the will, which includes a large farm to be apportioned among the three of them according to very specific instructions in the will. Her two children are named as co-executors. She also left behind a hand-written unwitnessed will, but it is not complete since it does not address the distribution of all her property. There has been no attempt to file that will in probate court. Her son wants to divide the property differently than what is specified in the will. If the three of them agree to the division he proposes, will the resulting transfer of property be legal? Or must he and his sister abide strictly by the terms of the will in the distribution of property?
1 Answer from Attorneys
Re: Can an Executor Distribute Contrary to Term of Will?
Assuming that the probated will is valid, the executors have no authority to act contrary to the express terms of the will. Deviating from the terms of the will would require the approval of the probate court. However, if the beneficiaries agree to "swap" portions of their inheritance, then they may do so, regardless of the will's provisions. Interestingly, the unwitnessed handwritten will could possibly have invalidated the other will if it was drafted later in time. Unfortunately, people sometimes think that they are merely "adding" to the terms of an existing will and unintentionally invalidate the existing will. If the witnessed will was revoked by the unwitnessed handwritten will and the land is not addressed in this handwritten will, then the land would pass according to North Carolina's intestacy statutes (the same as if there had been no will at all).
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