by Hess Verdon | Oct 10, 2023
CAN AN EXECUTOR DECIDE WHO GETS WHAT
No. An executor’s role is to enforce the provisions of a will, not to alter them. They are bound by the will’s instructions and lack the authority to change the distribution of assets or modify the list of beneficiaries. Their primary duty is to ensure the will’s terms are followed exactly as written. If you believe an executor is not living up to their fiduciary duties, then contact Hess-Verdon & Associate to best understand the strategy to remove the executor and thus protect the estate assets.
EXECUTOR VS. BENEFICIARY RIGHTS
Executors and beneficiaries play distinct roles in estate matters. The executor oversees the deceased’s estate management, while a beneficiary is set to inherit assets. Though one can serve in both capacities, careful consideration is advised when designating roles in a will to ensure smooth estate administration.
WHAT RIGHTS DOES AN EXECUTOR HAVE
An executor has the legal fiduciary duty authority to manage the estate’s affairs. Their rights include:
Collecting the decedent’s full estate assets only,
Paying debts and estate property taxes
Distributing the estate’s property as the decedent directed.
They act in the best interest of heirs to the estate and ensure the decedent’s wishes are fulfilled. Hess-Verdon & Associates is a probate attorney focusing on the probate process of a deceased person’s estate assets.
CAN AN EXECUTOR DECIDE WHO GETS WHAT
Can an executor decide the distribution of the estate property assets on their own? No. Typically, an executor cannot arbitrarily decide who receives which property. They are bound by the testator’s directives as specified in the will. Executors play a crucial role in theprobate process, ensuring assets are distributed correctly. Any deviation may lead to legal consequences in probate court, thus select a probate lawyer you feel most comfortable with.
What if the Executor is Not Transparent
Best is to make a consultation with an experienced litigation law firm and the probate process. You see, the objective is to find an attorney who is a “litigator” and has court experience.
DOES AN EXECUTOR HAVE TO FOLLOW THE WILL
Is adherence to the Will’s instructions mandatory for an Executor? Accepting the role of Executor for a Will bestows a fiduciary responsibility upon the appointee. This duty mandates strict compliance with the Will’s stipulations, especially under California legal guidelines. Non-compliance can lead to personal liability, emphasizing the gravity of the Executor’s role and the importance of meticulous execution.
EXECUTOR VS. BENEFICIARY RIGHTS
It’s important to remember that the executor is appointed by the court to administer theprobateprocess for the will. They are responsible for liquidating assets, paying off debts and taxes, and distributing the estate assets to beneficiaries. As long as the executor can demonstrate proper bookkeeping, appraisals, and fair market value estimates, it will be difficult for beneficiaries to petition the probate court to remove the executor. The executor’s primary duty is to settle the estate in a timely manner while also upholding their fiduciary duty to keep beneficiaries informed. Settling the estate can be a delicate balancing act as they must comply with selling assets at or near fair market value without engaging in self-dealing. Additionally, the executor must maintain open communication with the beneficiaries.
CAN AN EXECUTOR DECIDE WHO GETS WHAT IF THERE IS NO WILL
Without a will, an executor does not have the authority to distribute assets based on personal decisions. The executor duties of an estate distribution must adhere to the state’s intestacy laws, which define how assets are divided in the absence of a will, ensuring a fair process guided by legal standards rather than individual discretion.
How Does One Become the Executor or the Administrator?
If the person died without a will, you will need to go to probate court and explain why you would be the best party to complete the administration process. Note: the administrator must still complete the last wishes of the grantor, to sell assets, etc. and complete the probate process. Lastly, obtain an attorney.
CAN AN EXECUTOR OF A WILL ALSO BE A BENEFICIARY?
Yes, by law, it’s not uncommon for the executor of a will to also be a beneficiary. This often happens when the now deceased person has appointed a close family member or friend as the executor. While this dual role can sometimes lead to conflicts of interest, it’s perfectly legal and often works out without any issues.
CAN EXECUTOR DECIDE INHERITANCE
Can an executor alter inheritance allocations? No. The executor’s primary duty is to execute the deceased’s last will and testament faithfully. They must strictly follow the will and decedent’s estate provisions, ensuring beneficiaries receive their designated inheritances. Personal discretion isn’t allowed; by law, the executor must uphold the decedent’s final wishes as documented.
DETAILED DUTIES OF AN EXECUTOR
An executor’s responsibilities go beyond just distributing the assetsof the deceased person’s estate alone. They also include:
Identifying and gathering all assets of the estate.
Paying any debts and taxes owed by the estate.
Filing necessary tax returns on behalf of the estate.
Maintaining property until it can be distributed or sold.
Resolving any disputes that arise during theprobateprocess.
Interpreting the Will in Complex Scenarios
There may be situations where the will is not straightforward and requires some interpretation. For instance, if a child was born after the will was written and they were not included, the executor may need to make decisions about how to handle this. It’s important to note that any decisions made by the executor should always be in the best interest of all beneficiaries and in line with the overall intent of the will.
WHAT IF THE EXECUTOR IS TAKING THEIR TIME ON LIQUIDATING THE ASSETS?
If you believe the executor is not distributing assets of the estate to the rightful beneficiaries in a timely manner, you need to have a compelling reason. Here are some common complaints against an executor or administrator of a will:
Delays:Beneficiaries often feel theprobateprocess should be completed quickly. However, they may need to understand that it can take anywhere from 10 months to several years, depending on the estate’s size and whether other beneficiaries are contesting the will.
Accounting:Sometimes, an executor refuses to provide timely and reasonable accounting information to beneficiaries, which is a red flag. Anestate planning attorneyspecializing in probate can offer insight into such cases. If it is discovered that the executor is engaged in self-dealing, they may be removed as executor and potentially sued in civil court to recover damages.
Refusing to sell real estate:There are cases where the executor lives in a property that once belonged to the testator, which can be viewed as self-dealing. To initiate a conversation, send a letter or email discussing the property’s status and keep records to present to the courts if the executor does not respond promptly.
WHAT ARE THE RESPONSIBILITIES OF THE EXECUTOR?
Being nominated as an executor can seem advantageous to heirs, as they have the final say, based on due diligence, in overriding beneficiaries. However, the executor should maintain a good relationship with beneficiaries and keep them informed about accounting matters to avoid potential legal challenges.
As it pertains to legal issues, when a beneficiary feels the executor is not being transparent, not sharing the will or trust, and is not following their fiduciary duty, the named beneficiaries can contact an attorney and force a full accounting the the estate.
WHY DOES THE EXECUTOR HAVE THE FINAL SAY IN THE LIQUIDATION OF THE ESTATE?
A will must follow a general structure. In conclusion, an executor’s role is complex and requires them to navigate a delicate balance between personal representative, fulfilling their fiduciary duties and managing beneficiaries’ expectations. To ensure a smoothprobateprocess, executors should adhere to the following best practices:
Communicate regularly: Keep beneficiaries informed about the progress of the estate administration, including any significant decisions or developments.
Maintain transparency: Be open and honest about the executor’s actions and decisions, providing clear and accurate accounting information as required.
Seek professional advice: When faced with difficult decisions or complex legal issues, consult with experienced professionals such as estate planning attorneys, accountants, or financial advisors to ensure the best outcome for the estate and its beneficiaries.
Avoid conflicts of interest: The executor should act impartially and prioritize the estate’s best interests over their or any other party’s interests.
Resolve disputes promptly: If conflicts arise among beneficiaries or between the executor and beneficiaries, it is crucial to address these issues promptly and professionally, seeking mediation or legal assistance if necessary.
By adhering to these guidelines and fulfilling their responsibilities with diligence and care, an executor can ensure the smooth administration of an estate, minimize potential disputes over the estate assets and funds, and ultimately carry out the testator’s wishes as intended.
Frequently Asked Questions
Executors play a pivotal role in administering estates after someone passes, with specific powers and responsibilities that have to be fulfilled in their role as executors. Here is a snapshot of their powers and limitations:
What powers does an executor possess?
An executor possesses considerable power when managing and settling an estate of the deceased, such as collecting, valuing, paying debts and taxes due, and dispersing remaining assets according to will or applicable law. Their actions must always serve the best interests of both beneficiaries and estate and be conducted with an obligation of fiduciary fidelity.
Do executors need to inform beneficiaries?
Yes, executors are often required to inform beneficiaries about their entitlements and provide updates regarding the administration of an estate. This could involve notifying beneficiaries about rights they possess as beneficiaries, asset nature and any actions taken by an executor that affect it – keeping everyone informed is vitally important and helps prevent disputes while assuring an executor carries out their responsibilities effectively.
Can an executor withhold money from beneficiaries?
An executor may withhold funds for legitimate reasons, such as to cover estate expenses or fulfill specific provisions within a will that stipulate certain requirements before distribution takes place. If they withhold too much, this can be challenged legally by beneficiaries who claim injustice has occurred.
Can an executor access money in a deceased bank account?
Yes, an executor may withdraw funds from a deceased’s bank account in order to administer their estate – including paying debts, funeral costs, and administrative costs. Usually they need proof of appointment such as a grant of probate in order to gain access to these funds.
