While California law grants executors considerable authority in managing estate assets, the powers of an executor of a will are limited by the fiduciary duties owed to the estate and its beneficiaries. This means that executors are legally required to act in the best interests of the estate and its beneficiaries. In no case can an executor place their own self-interest above the interests of the estate.
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What is an executor?
An executor is the person named in a will to manage the deceased person’s estate, ensuring assets are distributed according to the decedent’s wishes. Once the will is admitted to probate, the executor is granted legal authority by the court to act on behalf of the estate. Their role includes safeguarding assets, settling debts, and completing necessary legal and financial tasks. Essentially, the executor serves as the estate’s fiduciary, responsible for fulfilling the will’s terms.
What are the powers of the executor of a will?
Generally speaking, the executor of a will has the authority to manage the affairs of the estate.
The executor of a will is typically selected by the deceased and named in the will. Executors have several responsibilities when managing the deceased’s estate assets, including:
- Hiring a lawyer to assist with the estate administration
- Notifying beneficiaries of the death
- Locating and filing the will
- Marshalling estate assets
- Paying taxes and estate debts
- Terminating leases and other contracts
- Selling property
- Appraising estate assets
- Distributing estate assets according to the will
Duties of the Executor of a Will
An executor is responsible for carrying out the will’s instructions faithfully. Their duties include gathering and protecting assets, paying debts and taxes, and distributing property to heirs as directed. It is their obligation to act promptly and transparently, following both the terms of the will and applicable court procedures.
Is an executor of an estate the same as administrator of a will?
No, while executors and administrators carry out the same duties, they are not the same.
California refers to the person responsible for settling an estate as a “personal representative.” Executors are personal representatives who are named in a will. In contrast, administrators are not named in a will because either there is no will or the named executor(s) of a will deceased or otherwise cannot serve. Both executors and administrators must be appointed by a court to have any authority to act on behalf of the estate.
Can an executor of a will also be a beneficiary or heir?
Yes. Beneficiaries and heirs can, and regularly do, serve as executors in California.
Executors often are spouses or children of the deceased, and California law places no restrictions on beneficiaries or heirs serving as executors. In fact, anyone who is at least 18 years old and is not legally incapacitated can be an executor.
Even though a beneficiary serving as an executor of a will may pose a conflict of interest, this is rarely a problem because of the fiduciary duty the executor owes the estate and its beneficiaries. Unfortunately, on rare occasions, an executor-beneficiary will violate their fiduciary duty and take an action that benefits themselves to the detriment of the estate or other beneficiaries. These self-interested actions are referred to as “self-dealing.” If you are a beneficiary and you believe the executor is engaging in self-dealing, you should seek legal advice from a probate litigation lawyer as soon as possible.
Can an executor of a will pay themselves a salary?
No, an executor of a will cannot pay themselves a traditional “salary” because all compensation but be approved by the court prior to payment. But an executor, or administrator, may receive a commission for their ordinary services, as well as reasonable fees for extraordinary services, such as selling real estate or handling litigation. All these commissions will be paid off the top from the estate assets and prior to any distributions.
Under California State Probate Code §10810, an executor may receive compensation based on the estate value. The pay rates are:
- 4% on the first $100,000
- 3% on the next $100,000
- 2% on the next $800,000
- 1% on the next $9,000,000
- ½% on the next $15,000,000
- A reasonable amount to be decided by the court on all amounts above $25,000,000
So, for example, the executor of a $600,000 estate would be entitled to receive 4% of the first $100,000 ($4,000), 3% of the next $100,000 ($3,000), and 2% of the next $400,000 ($8,000) for a total of $15,000.
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Can an executor of a will take property from the estate?
It depends. The executor of a will can usually sell estate property, either with or without court approval depending on how much authority they have, but they cannot take it for themselves unless the will leaves it to them and the court approves its distribution to them.
As long as they believe it is in the estate’s best interest, executors may be able to sell personal property of the estate for 90% or more of the appraised value without court or beneficiary approval. However, if the executor wants to sell real estate, they may first need approval from the court. The proceeds from the sale then belong to the estate, not the executor.
However, Executors cannot simply take property from the estate and keep it for themselves. Likewise, they cannot change a will after the person dies to alter who receives what. The court strictly enforces the terms of the original document.
Can an executor of a will take money from the estate?
No, executors cannot take money from the estate for themselves.
The estate’s money belongs to the estate, its creditors and beneficiaries, not the executor. While the executor has the power to manage and direct estate funds, they are bound by their fiduciary duty to distribute the money according to the will to the estate beneficiaries. Even when the executor is also a beneficiary, they cannot take money from the estate bank account or change a will to increase their own share. Instead, they must wait until the estate is closed and the money is distributed with court approval.
Do I need a probate litigation attorney to contest a will or trust?
While you are not legally required to use a probate litigation attorney to contest a will or trust, it will be greatly beneficial for you to have an experienced lawyer on your side.
Litigation to contest a will or trust involves complicated, nuanced legal issues and specific probate and civil procedures. Probate litigation attorneys deal with these matters regularly and are well-versed in these processes. An experienced lawyer can evaluate the strength of your case, provide legal guidance, and present your case in the best possible light to get you the best result. There is an old saying: “A lawyer who represents himself has a fool for a client.” The takeaway? Even the best lawyer knows it’s best to hire counsel.
Do I need a probate lawyer near me?
If you have a probate, hiring the best attorney familiar with the local probate court where your case is going to be heard and decided often will get you the best result. Hiring someone local can be logistically favorable, but the reality is that familiarity with the court and its judges, processes and rules will help move your case along more efficiently and cost-effectively, getting you a better result sooner and likely for less legal spend.
Frequently Asked Questions
Executors have several key responsibilities, including:
• Inventorying and safeguarding estate assets, such as real and personal property.
• Settling debts and taxes, including filing the decedent’s final tax returns and resolving creditor claims.
• Distributing assets to beneficiaries as directed by the will and court order.
• Managing estate administration, which can involve handling ongoing expenses, insurance claims, and maintaining accounts.
These duties are performed under the supervision of the probate court and must be executed with transparency and impartiality.
An executor is named in a valid will to administer the estate and carry out the deceased’s wishes. An administrator, by contrast, is appointed by the court when no valid will exists or when the named executor is unable or unwilling to serve. While both carry similar responsibilities, like managing assets and distributing them to heirs. Executors act according to instructions in the decedent’s will, whereas administrators must distribute assets based on state intestacy laws.
Yes. Executors carry a fiduciary duty to administer the estate according to the explicit instructions laid out in the will, unless a court authorizes deviation. This means they must not alter distributions or bypass terms they disagree with. Instead, they should petition the court if they believe circumstances justify a modification.
If an executor fails to carry out a will’s terms, beneficiaries can petition the probate court for removal due to breach of fiduciary duty. The court may order the executor to repay any losses (a surcharge), remove them, and even mandate that they cover attorney’s fees. In egregious cases involving fraud or theft, criminal penalties may apply.
No, an executor cannot change a will after the person has passed away. Once the court admits the will to probate, its terms are legally binding unless the court finds it invalid through a proper legal challenge. Any attempt by an executor to alter distributions, add beneficiaries, or remove provisions would violate their fiduciary duty. The correct approach for any perceived errors or unfair terms is to petition the probate court, not to make unauthorized changes.
If an executor attempts to change a will after the person dies without court approval, they may face serious legal consequences.
These can include:
• Removal from their role for breach of fiduciary duty.
• Court-ordered repayment of any losses caused to the estate or beneficiaries (surcharge).
• Liability for attorney’s fees incurred by those harmed by the misconduct.
In cases involving fraud or forgery, criminal prosecution that may lead to fines or imprisonment. Beneficiaries who suspect such conduct should promptly seek advice from a probate litigation attorney.