Can an executor adjust an estate to make the division among siblings more fair?

2 answers | Last updated: Oct 15, 2016
A fellow caregiver asked...

If a will states that the estate is to be divided equally between all siblings yet, one sibling has already received far more than the other siblings; does the executor have the power to adjust that sibling's share?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

In most cases, no.

If the will contains a common clause such as: "I give my estate in equal shares to my children, A, B and C," then the executor has no wiggle room to decree that A, who received a sizable down payment for his house from the willmaker during life, should get less than one-third"”even if this doesn't strike the remaining siblings as fair.

However, if the siblings"”including A"”are chummy enough to agree that it is unfair for A to take one-third in addition to the other property he or she received, they are free to come up with a different plan of sharing on their own; the executor can't just decree it.

If B and C are miffed about their shares, but A is not willing to give up part of the property, there may be little they can do. This is especially true if the will contains another common dictate: a "no-contest clause," specifying that those who bring a legal battle over a will get nothing. While some courts are loath to enforce these clauses against family members"”and the truth is that will contests are rare"”some courts do enforce them strictly.

One exception may be when it is clear that the willmaker intended a gift made during his or her lifetime to take the place of a share of property given in a will. But this requires strong proof of the willmaker's intent"”such as a clearly worded writing. Such compelling evidence, however, is rare.

Community Answers

Lady lew answered...

I decided to "forgive" whatever loans I had made along the way to my children as they were growing up, starting professional lives, setting into marriages and family, and buying homes. That way, it was all "even" in the end. I never even kept track of those loans; that was just part of loving parenting in my thinking. And there were times when they loaned me money, too. That way, when it came to dividing up my estate, nobody would be doing an accounting of who got what along the line.