Generally speaking, the executor of a will cannot take everything simply based on their status as executor. Executors are bound by the terms of the will and must distribute assets as the will directs. This means that executors cannot ignore the asset distribution in the will and take everything for themselves. However, if the executor of the will is also the only beneficiary named in the will, they can take the estate assets after debts and taxes are paid.
Can an executor of a will take everything?
No. An executor of a will cannot take everything unless they are the will’s sole beneficiary.
An executor is a fiduciary to the estate beneficiaries, not necessarily a beneficiary. Serving as an executor only entitles someone to receive an executor fee. While the executor fee will come from the estate funds, it is a legal entitlement to be paid for their time and effort as approved by the court and not an inheritance.
When the executor is also a beneficiary of the will, they are entitled to receive their inheritance on top of the executor fee. However, the executor cannot modify the terms of the will. As a fiduciary, the executor has a legal duty to act in the beneficiaries and estate’s best interests and distribute the assets according to the will. This means that an executor cannot allocate all assets to themselves unless they are the sole beneficiary of the will or if the will expressly gives them the power to do so, which is uncommon.
Can an executor take money from the bank?
An executor can transfer money from a decedent’s bank account to an estate account in the name of the executor, but they cannot withdraw cash from the account or transfer it into their own bank account.
The estate’s assets do not belong to the executor. They belong to the estate. As a fiduciary, the executor must manage the money in the estate account, but they cannot take it for themselves. Even if the executor is also a beneficiary, they cannot take funds directly from the decedent’s account as their “inheritance.” They must wait until the estate is closed and funds are distributed to beneficiaries upon court approval of a petition for final distribution.
An estate account will list the executor as the account owner, but in their capacity as fiduciary of the estate. The executor can access the funds in the account as needed to pay debts, taxes, and other estate expenses. When the estate is closed, the executor can close the account and distribute the money according to the will. However, the executor cannot use the funds for their own purposes or as they wish.
Can an executor sell property of the estate?
Yes, executors can sell the estate’s property, with some limitations.
In California, a probate referee will be appointed to appraise the estate assets, including personal property, securities and real estate. The executor may be able to sell the estate’s personal property for 90 percent or more of the appraised value without receiving approval from the court or the beneficiaries. While the executor may not need to get approval from the beneficiaries, executors should provide beneficiaries with notice of the sale.
An exception to this rule is that, when selling real estate, the executor usually must receive approval from both the beneficiaries and the court.
What is an executor of a will?
The executor of a will is the person responsible for managing the probate process for a decedent’s estate. Typically, the executor is selected by the testator and named in the will. The executor’s responsibilities include marshalling assets, paying estate taxes and debts, selling estate property as necessary, and distributing estate assets and property to the named beneficiaries of the will.
Who can be executor of the estate?
In California, anyone who is at least 18 years old and has not been determined to be incapacitated by court order can be an executor. Executors are often family members or close friends of the deceased, but some people prefer to name disinterested third parties as their executors to keep management out of the family to reduce friction.
Additionally, there is no prohibition on beneficiaries of the will serving as executors. In fact, they often do. Because the executor has a fiduciary duty to the estate and all of its beneficiaries, this usually does not cause any problems, despite the apparent conflict of interest.
However, sometimes executors who are also beneficiaries choose to ignore their fiduciary duties and act to further their own interests, even when contrary to the other beneficiaries’ interests. If you are a beneficiary of a will and suspect that the executor is violating their fiduciary duty, you should discuss the situation with a probate litigation attorney as soon as possible.
Can the executor of estate be changed?
Yes, an executor of an estate can be removed under certain circumstances in California. According to California State Probate Code §8502, an executor can be removed when:
- They have wasted, embezzled, mismanaged, or committed a fraud on the estate, or are about to do so.
- They are incapable of properly executing their duties or are otherwise not qualified for appointment.
- They have wrongfully neglected the estate, or have long neglected to perform any duties.
- The removal is necessary to protect the estate or interested persons.
- There is another cause for removal under state statute.
If a question is raised about an executor’s qualifications, the court will hold a hearing to decide whether the executor should be replaced and who is best suited to serve as executor. Interested parties, such as the deceased’s spouse, beneficiaries and heirs, creditors, and other potential executors, have a right to participate. After the hearing, the judge can remove an executor if they agree there are grounds for removal.
How long can an executor take to settle an estate?
While the probate process in California usually takes about anywhere from a year to two years, more complicated estates can take years and years to settle.
An estate with a clear will and no contests or complications can almost always be settled in around a year. On the other hand, complicated tax issues, high-dollar assets, challenges to the will, bogged down legal processes, and other complications can make the estate take much less to settle.
If you are a beneficiary and believe that the executor is dragging their feet and wrongfully neglecting the estate, you should consult with an experienced probate litigation lawyer as soon as possible. You may be able to have the executor removed and replaced with someone who is willing to do the work needed to settle the estate and distribute your inheritance sooner.
Do I need an estate lawyer near me to challenge an executor?
If you have an estate dispute, 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 result sooner and likely for less legal spend.
Have questions? We’re happy to discuss.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit rmolawyers.com.