The Duty of Impartiality: When an Executor Plays Favorites in a Kentucky Estate
Executors are very often family members — and family members have favorites, grudges, and history. Kentucky law nonetheless demands something difficult of them: when they put on the fiduciary hat, they must treat the beneficiaries impartially. An executor who runs the estate for the benefit of one beneficiary at the expense of another is breaching a duty, even if every individual transaction looks technically defensible. These are some of the most emotionally charged cases in probate litigation, because the favoritism usually tracks fault lines that existed in the family long before anyone died.
What Impartiality Actually Requires
Impartiality does not mean treating every beneficiary identically — the will controls who gets what, and beneficiaries with different interests can legitimately be treated differently. What the duty forbids is the executor tilting the administration itself: favoring one beneficiary’s timing needs, information access, or financial interests over another’s without a basis in the will. The executor’s personal preferences among the beneficiaries are supposed to be irrelevant. When the executor is also a beneficiary, as is common in Kentucky family estates, the tension is built in — and courts expect the executor to manage it, not exploit it.
What Favoritism Looks Like in Practice
A few patterns recur. The executor lets one sibling live in the estate house rent-free while the others wait for their shares. Distributions of personal property happen informally, with the favored child taking what she wants before any appraisal. In-kind distributions are engineered so one beneficiary receives appreciating assets while another receives declining ones of nominally equal value. Estate loans or advances go to one beneficiary but are refused to another. Information flows freely to some beneficiaries and not at all to others. Each of these, standing alone, might be explainable. As a pattern, they are evidence that the fiduciary is administering the estate as a partisan.
The Special Problem of Debts Owed by a Favored Beneficiary
One scenario deserves its own mention: the beneficiary who owed the decedent money. Kentucky recognizes that a debt a beneficiary owed the decedent can be charged against that beneficiary’s share — the estate is not supposed to simply forget it. An executor who quietly declines to collect a loan the decedent made to a favored child, while distributing the estate as if the debt never existed, has shifted real money from the other beneficiaries to the favorite. Beneficiaries should ask pointed questions about any known family loans and how the executor intends to treat them.
Proving It
Favoritism cases are document cases. The estate account records show who received money and when. The correspondence shows who got information. Appraisals — or their absence — show whether in-kind distributions were actually equal. In an adversary proceeding in Circuit Court, beneficiaries can obtain all of this through discovery, along with the executor’s deposition testimony explaining each decision. Executors who made decisions for legitimate administrative reasons can usually articulate them. Executors who were playing favorites tend to give explanations that fall apart under mild pressure, because the true explanation is the one they cannot say out loud.
Remedies Available to the Disfavored
Kentucky courts have a full toolbox. The District Court can order accountings and can remove a personal representative under KRS 395.160 for failure to faithfully discharge the office. Where the favoritism caused measurable loss — the below-market “rent,” the uncollected loan, the lopsided distribution — a Circuit Court action for breach of fiduciary duty can surcharge the executor personally, restoring to the estate (and thus to the shortchanged beneficiaries) what the favoritism cost. Courts can also adjust distributions to account for benefits a favored beneficiary already received. The goal is not to punish family feeling; it is to make the numbers come out the way the will and the law require.
A Word to Executors
If you are serving as executor amid family tension, protect yourself: document decisions, get appraisals before distributing property, charge fair rental value or nothing for anyone’s use of estate assets, treat known family debts openly, and share information with every beneficiary on the same schedule. Most surcharge cases I see were avoidable with ordinary transparency.
If you are watching an executor run an estate for someone else’s benefit — or you are an executor being accused of it — I can help you sort out what the law requires. Call me at (859) 225-9540 or use the contact form on this site.
Joseph D. Buckles is a civil litigation attorney at Buckles Law Office, PLLC in Lexington, Kentucky, with a focus on civil litigation and probate litigation.
