What To Do If an Executor Is Not Communicating With Beneficiaries?

Executive summary 

• If an executor does not uphold their responsibility to communicate with beneficiaries, they can be removed from their role by the court or even face legal action.
• An executor has a fiduciary duty to act in the best interests of an estate and maintain consistent communication with beneficiaries.
• An executor must provide notice to beneficiaries before taking actions like initiating probate or selling estate property and is obligated to respond to beneficiaries requesting an accounting.
• Beneficiaries should understand that there may be situations where they should offer grace to the executor and give them a chance to respond before pursuing more extensive action. 

Introduction 

If an executor is not communicating with beneficiaries, it can lead to trouble. An executor is responsible for carefully managing an estate in a way that aligns with the best interests of the beneficiaries, the deceased party, and the estate as a whole—this responsibility is known as a fiduciary duty.

If an executor fails to communicate with beneficiaries or uphold their fiduciary duties, beneficiaries may take legal action against them through the courts. An executor who lacks communication or demonstrates inaction can face removal from their role or other legal consequences, such as monetary penalties.

Beneficiaries have considerable rights during probate and have the right to take action against an executor who is failing to communicate. That said, beneficiaries must also be aware that executors have a significant list of responsibilities and should offer grace when possible. Understanding the balance between the two will allow you to understand when you should give an executor the benefit of the doubt and when seeking more extensive legal action is necessary.

Understanding fiduciary duties and what executors are legally required to do 

An executor owes the beneficiaries of the estate they are administering a “fiduciary duty.” This means that the executor must exercise reasonable care and act in the best interests of those beneficiaries and the estate as a whole. 

This fiduciary duty includes a wide group of responsibilities, from acting with the best interests of the estate in mind to responsibly managing all estate assets—one of the key parts of an executor’s fiduciary duty is the obligation to keep beneficiaries informed by maintaining consistent communication. 

Some of the other important responsibilities include: 

• Distributing the assets of the estate to the identified beneficiaries based on the terms of a will
• Marshaling, valuing, and responsibly managing estate assets
• Making responsible investments with estate assets
• Maintaining a clear accounting of all estate transactions 
• Reporting actions taken involving estate assets to the court at least annually

An executor’s responsibility to communicate: Keeping beneficiaries informed

An integral component of an executor’s fiduciary duty is that they have a responsibility to keep beneficiaries reasonably informed about the administration of the estate. This does not mean that the executor must communicate every decision they make or every action they take. 

However, executors generally must provide beneficiaries with enough information to understand the nature of the assets of the estate, the debts the estate owes, transactions made with estate property, and how the property will be distributed to beneficiaries. This information will typically be provided through an inventory and appraisal of the estate’s assets, updated appraisals, probate referee appraisals, and accountings that are usually filed when an estate is prepared to distribute and close.  That being said, the executor can always choose to provide more information more frequently.

If the executor of an estate fails to keep the beneficiaries reasonably informed about the will’s administration, or if they have evidence the executor is engaging in misconduct or mismanagement, they have the right to petition the probate court for executor suspension or executor removal on the grounds of a breach of fiduciary duty. 

What steps can beneficiaries take if communication is lacking?

If communication is lacking or you feel an executor is ignoring you, there are several steps beneficiaries are able to take. The executor role can be challenging and highly demanding, especially for anyone who has never served in the role before. Oftentimes, it’s worth giving the executor the benefit of the doubt.

Before taking legal steps against an executor, beneficiaries should be sure that they exhaust all options and give the executor time to respond. Taking initial steps to open lines of communication before jumping to legal action could avoid conflict and the risk of damaging relationships in the process.

Beneficiaries should take some of the following steps if communication is lacking:

• Establish preferred communication channels – There are instances where executors may not have the same preferred communication methods as the beneficiaries, which may delay communication, so both parties should establish the best way to reach each other.
• Follow up via email – Sending an email to the executor is a good way to influence them to respond while also allowing you to keep track of all the communications you’ve sent in case you need to provide them to the court.
• Talk to family members – Especially when an executor is a family member, family dynamics may be at play and affect communication. If you have not heard from your executor, you should consult other interested parties to see if they’ve heard any updates or have communicated with them.
• Request an accounting – In the event that an executor is still not responding to your or anyone else’s attempts at reaching out, requesting an accounting of estate assets gives them a legal responsibility to respond. 

Remember to give the executor reasonable time to communicate with you throughout your initial efforts to reach out. It’s also important to understand that an executor will not have all the answers, so consider whether you are asking reasonable questions of the executor and if it is realistic that they would have an answer before reaching out.

However, if you have done your due diligence and your approaches to open lines of communication do not work, then you may consider pursuing more extensive legal action against the executor.

Petitioning the court: Taking legal action against a non-communicative executor

If you find that an executor is failing to uphold their responsibilities of maintaining communication while managing assets, you may take legal action by petitioning the court. Depending on the documented acts of executor misconduct, a successful court petition may either compel the executor to act or seek the removal of the executor entirely, upon the discretion of the court. 

The process of filing a petition involves: 

• Gathering necessary documentation – Beneficiaries should gather any documentation that provides evidence of a breach of fiduciary duty, like a lack of communication or misconduct from the executor. This evidence may include emails, call logs, or other evidence of misconduct.
• Seeking a probate litigation attorney – You should seek the support of an attorney who can be there to help you bridge the gap between you and the executor, determine whether you have a case, compile evidence to build that case, and navigate the court proceedings.
• Navigating the court process – The court may require hearings to gather insight about the situation from both the executor and the beneficiaries, where both sides can present their evidence in more depth.

Keep in mind that any legal action should offer proof that the executor failed to uphold their duty of communication. If the court establishes that communications with the executor constitute harassment, they may throw out your case and it could result in challenges communicating during the probate process going forward. 

Does an executor have authority to  sell real estate or property?

Yes, an executor can sell real estate or property in most instances. Typically, as long as they are granted authority by the will to do so and the executor is appointed as personal representative by the court, they will have authority to sell the estate’s real property. Both California and Texas law highlight how this process should look. However, it is important that the executor communicates with beneficiaries during this process. 

California Probate Code 10000

Under California Probate Code 10000, the personal representative may sell real or personal property of the estate in any of the following situations:

• Where the sale is necessary to pay debts, devices, family allowance, expenses of administration, or taxes.
• Where the sale is to the advantage of the estate and in the best interest of the interested persons.
• Where the property is directed by the will to be sold.
• Where authority is given in the will to sell the property.

However, even in these instances, there may be limitations on when an executor can sell property. For example, executors will often be able to sell the estate’s personal property without court or beneficiary approval, but only as long as they sell the property for at least 90% of the appraised value. And while an executor still might be able to sell property for less than 90% of the appraised value, if they do they are running the risk of being surcharged for the difference.

On the other hand, an executor may need approval from the court and/or consent from the beneficiaries before they can sell real estate. It all depends on the level of authority granted to them by the will and any orders the probate court may have issued.

When the court has only granted an independent executor limited authority to act, they must obtain the court’s permission before selling real property. During this process, beneficiaries will have an opportunity to object if they believe that the proposed sale is unsuitable.

Texas Estates Code Chapter 356

Texas Estates Code Chapter 356 authorizes an executor to sell estate property if the will document provides authority to do so or the executor receives approval from the court.  An executor has the authority to either sell property through public auction or privately, whichever is in the best interest of the estate. Still, the executor must closely follow the terms of the will and should not make any decisions to sell estate property without justifiable reasoning in a will. 

There are limitations on this ability. First, this can only happen after an executor has been officially appointed by the court and the letters testamentary have been sent to all interested parties in the estate. Second, an executor is not allowed to sell property to themselves. 

An executor must also provide notice to beneficiaries when planning to sell property. Beneficiaries have the right to contest the sale of property through the probate court.

What Is a DE 165 and what is its purpose?

A DE 165 is a California probate form known as a “Notice of Proposed Action.” When a personal representative who has been granted authority to independently administer an estate wants to take certain actions, such as selling real estate, they must provide a DE 165 to every beneficiary whose interest in the estate would be affected by the proposed action at least 15 days before taking the action. 

If one or more beneficiaries do not want the personal representative to take the action listed in the DE 165, they can submit a written objection to the executor. If the personal representative still wants to move forward with the proposed action, they will need to get approval from the probate court to do so. In addition to returning the DE 165 to the personal representative, the disapproving beneficiary can also submit their objection to a Notice of Proposed Action with the probate court. Doing so will cause a hearing to be scheduled to determine whether or not the personal representative can take the action. The objecting beneficiary may also be able to obtain an order prohibiting the personal representative from taking the proposed action.

What can beneficiaries do to get their rightful inheritance?

Beneficiaries can take a few potential steps to hold the executor accountable and increase their chances of receiving their rightful inheritance. If a beneficiary believes that an executor is taking too long to distribute inheritances, they can submit a petition to the court to urge the executor to act.

If a beneficiary disagrees with anything an executor is doing, they can submit a written objection to the executor, and if the executor fails to respond and keep you informed, you may have some of the evidence you need to have them suspended or removed. 

If the executor has issued a Notice of Proposed Action – essentially telling you what they want to do and what will happen if you don’t object – you can object to the Notice of Proposed Action and the executor, in most instances, will seek court approval before acting.  

That time will allow you and the executor to work things out, and if you’re not able then you and the executor will be allowed to present your arguments to the court. The court will then decide whether or not to allow the executor to do what they propose – e.g. permit the sale. 

In many cases, executors are reasonable, and you will be able to have a discussion about repairing lines of communication in order to maintain a positive working relationship. That said, if you are the beneficiary of an estate and you are concerned about the executor’s proposed actions or continued lack of communication, you should discuss your situation with a probate litigation attorney as soon as possible. 

What if the executor does not probate the will? Navigating non-probate situations

If an executor does not probate a will, it could lead to several potential problems, like a delay in distributing assets or unnecessary expenses generated by the estate. Not passing through probate could lead to several legal and financial issues:

• Prevents the legal transfer of ownership of any property from the deceased party to the beneficiaries, leaving the assets in the decedent’s name indefinitely. Beneficiaries will not have legal ownership of any inherited assets like a car, home, or investment accounts.
• The estate may continue to incur expenses like property taxes and ongoing bills without an ability to pay from accounts that are in the decedent’s name. 
• Debts to creditors may not be paid and they may pursue legal action against the estate in order to seek repayment.
• The executor may face criminal charges if they personally benefited from arranging for the distribution of assets without probate.

There are situations where it makes sense for an executor to not probate a will. For example, if the total value of the estate is below a set threshold—$184,500 in California and $75,000 in Texas—then an executor can submit a small estate affidavit to have assets transferred directly to beneficiaries. However, they will also need to complete the necessary legal documentation and keep beneficiaries informed throughout this process. 

Unless there is a valid, court-approved reason not to have to probate the will, it’s the executor’s responsibility to initiate probate. If the executor does not probate the will, beneficiaries can petition the court to request that the executor take action. Beneficiaries may also petition to remove the executor if they feel they have justified reason and evidence of the executor failing to uphold their duties.

Executor discretion and decision-making: Who gets what?

Although an executor does have some leeway to make decisions around a will, they do not have full and complete discretion over decision-making, as there are limits to their discretion. The executor is still bound to a will and any estate planning documents left by the testator. Decisions on how to distribute assets to beneficiaries must be grounded in compliance with and respect for the wishes of the decedent.

Even if there was no will, the executor still does not have free reign to decide how to distribute estate assets. In this case, they will be required to distribute assets to beneficiaries based on who would be considered legal heirs according to state intestacy laws. 

The executor may have some discretion in instances that could use more clarity. For example, the executor has the right to sell property if it’s necessary for dividing estate assets. However, an action like this must still be justified based on the terms of the will and have court approval. 

Beneficiaries can challenge actions from an executor that they feel are overstepping their bounds. In this case, beneficiaries can petition the court to contest the will or the administration of the estate.

Legal ramifications for executors understanding potential criminal charges 

There may be instances where an executor who commits wrongdoing may face criminal charges. Pursuing criminal charges against a personal representative usually requires actions of serious misconduct, like theft or fraud. 

Examples of misconduct that can lead to legal ramifications include: 

• Embezzling estate funds
• Failing to disclose significant assets in the estate
• Mixing estate assets with personal assets 
• Making irresponsible investment decisions with testate assets

In most cases, an executor who is found to have committed wrongdoing will be subject to removal from their role with no further consequences. However, if they have stolen assets or committed egregious wrongdoing, they may be subject to additional consequences.

When to consult a probate attorney for legal guidance

Legal advice can be incredibly valuable in the case of an uncooperative or questionably acting executor. A probate litigation attorney can help you understand whether an executor’s actions are reasonable or if they may require further legal action.

An experienced probate litigator can help you determine the best method to help you protect your inheritance. In some situations, you may only need to object to a Notice of Proposed Action. In other cases, having a probate lawyer may help open the lines of communication so you can make sure you’re well informed.

However, in cases involving serious executor misconduct, your attorney may recommend that you petition to have the executor suspended or removed to ensure that your loved one’s legacy is protected and you receive your rightful inheritance. 

Understand your rights as a beneficiary

As a beneficiary, you have considerable rights and the right to hold executors accountable to their fiduciary duty. Beneficiaries should take reasonable steps to open the lines of communication before seeking litigation. However, if an executor fails to maintain consistent communication or acts with misconduct, beneficiaries have a right to petition the court for them to take action or have them removed. 

If you have gotten to the point where you feel an executor is failing to uphold their duty to maintain communication, you should contact a probate litigation attorney for support. At RMO Lawyers, we have supported countless clients in navigating probate, resolving conflicts between interested parties, and upholding their rights. Our attorneys will help you build a strategy to secure your rightful access to an inheritance and ensure the best interests of the estate are carried out.

Schedule a consultation with our team of attorneys at RMO Lawyers to discuss your case today. 

Glossary 

Probate – The court process in which the assets of an estate are gathered, accounted for, and distributed to the heirs or beneficiaries after an individual passes away, either in accordance with the deceased’s wishes if they had a will or following local intestacy laws if there was no will.

Decedent – A person who has passed away, leaving behind assets to be distributed upon their death.

Testator – A person who creates a will. 

Executor – An individual appointed by a probate court who is responsible for managing and administering an estate and is named as executor in the deceased’s will.

Fiduciary duty – The legal obligation that an estate executor or administrator has to an estate and its beneficiaries to act in their best interests.

Beneficiary – An individual or entity identified in a trust as being entitled to receive benefits from the estate.

Heir – An individual who is entitled to receive a share of assets in the event of the settlor’s death based on established state intestacy laws.