What an executor cannot do - trust attorney near me

What an Executor Can and Cannot Do

Executors cannot do things which are contrary to the benefit of heirs, beneficiaries, and the estate. This means if you suspect an executor is withholding your inheritance distributions, you would have the right to sue the estate, or litigate to suspend, remove and replace the executor.

What is an Executor of Will or Administrator of Estate?

The executor of will or administrator of estate is the individual responsible for handling and completing the probate process for the decedent’s estate. Commonly, a parent may name their oldest or most responsible child the executor of their last will and testament. As such, it is that child’s responsibility to handle the estate’s probate process, including paying debts using estate assets, selling estate property, and distributing assets to heirs and beneficiaries in accordance with the last will and testament.

What are the executor responsibilities to beneficiaries?

Being named the executor of a will brings with it a wide variety of important duties that must be carried out to meet the wishes of the decedent. If you have been named as an executor, here are several of the functions you may need to undertake: (for more info, read “The Executor of Will Checklist”)

  • Locate the will.
  • Retain an attorney.
  • Identify and protect the deceased person’s assets.
  • Review the will and keep its beneficiaries informed.
  • Notify all other appropriate parties.
  • Continue paying bills as needed.
  • Start distributing assets of the estate.
  • File papers to close out the estate.

Can an executor also be a beneficiary?

Yes. It’s quite common for an executor to be a beneficiary. Consider when one spouse passes away, the living spouse of the decedent is frequently named executor. It’s also common for children to be named both beneficiaries and executors of wills/trustees of family trusts.

Is it true that an executor cannot be a family member or friend?

False. An executor often is a family member or family friend. In many cases, we see parents naming their spouses or children as executors, and children naming parents or siblings as the executor of their will. In some cases, as estates grow in complexity, we see trusted family friends being named executor. Why? The principals of the estate may feel the family friend is the most experienced with the estate planning process, most capable to deal with estates assets or family dynamics, and/or has the time to handle the probate process in the event of the parent’s death. For example, a parent’s estate is valued at $3 million dollars and the estate includes three real estate properties and a small business. The parent may choose to name a trusted family friend the executor, because that family friend is a retired accountant — while the parent’s children are working full-time with busy families of their own. In such a case, the parent feels their estate is in good hands, and the children are appreciative that one of them was chosen over the others, while they also don’t feel forced to spend the time required to guide their parent’s estate through probate.

What if the beneficiaries cannot find or locate the executor of a will?

If the beneficiaries and heirs of an estate cannot locate the executor of the estate, or if the executor dies, the local probate court will appoint someone to be the executor. The court will issue “letters testamentary,” which document authorizes the executor to act on behalf of and in the best interest of the estate. Note, a living executor can also be disqualified from their role if they are incapacitated, convicted of a felony, or express what the court or beneficiaries believe to be a conflict of interest.

What if the executor cannot locate a beneficiary?

If an executor cannot locate a beneficiary, the courts will need to be convinced that the beneficiary should be deemed deceased. Before the court will do so the executor most show and document that they’ve done the following:

  • Reached out to any living spouses or family members of the beneficiary
  • Sought the beneficiary’s last known mailing address
  • Reached out to previous employers
  • Reached out to other individuals in the community

If the executor, nor the probate court representatives, are able to locate the beneficiary after a set time period, then the missing beneficiary is treated as if they passed away — and their inheritance assets are distributed fairly to the other heirs and beneficiaries, pursuant to the state probate code of intestate succession.

Does an executor inherit something if the first choice or primary beneficiary cannot?

Firstly, the role of executor is that of fiduciary, not beneficiary, and as such the executor is only entitled to their executor fee, not an inheritance. The executor fee includes the legal right to be paid by the estate for their time and effort. This amount is dictated by state probate code, and is coincidentally the same amount paid to a probate attorney administering the estate. For example, in the state of California, the executor of a $1 million estate is entitled to be paid $23,000 for their time and effort. In addition to their statutory fee, an executor may be entitled to recover extraordinary executor fees for services that are not a normal part of an administration, such as selling real property, running a business, litigation, etc.

Secondly, if the executor is ALSO a beneficiary, then they are entitled to their inheritance distribution as dictated by the will, trust, or state intestacy law. Plus, they are entitled to be paid for their time and effort. At RMO, we see many executors declining their executor payment, when they work with a probate lawyer. Why? Presumably, because the probate lawyer is handling the probate responsibilities, the named executor would rather their executor fee be distributed fairly to the other beneficiaries.

Can an executor override a beneficiary?

The executor cannot change the last will and testament. It is the executor’s express duty to act in the best interest of the beneficiaries and estate, and to carry out the probate process, including distributing inheritance assets to intended beneficiaries and heirs.

If an heir or beneficiary feels that the executor is not fulfilling the decedent’s intent, as dictated by the will, then it is the heir’s right to contest the will and pursue litigation, in order to get what they feel is fair, and intended by the decedent.

Can I sue the executor of a will or administrator of the estate?

Yes, an executor or administrator can be sued, just like anyone else. However, if what you are looking to do is challenge the distributions of a will or trust, then you will need to contest the will or trust via probate or trust litigation. For example, if an heir feels that they deserve a larger inheritance than what the will or trust provides, then the heir will need to hire counsel and prepare and file a contest petition. Differently, if an heir feels they are entitled to assets from the estate not as inheritance but rather as reimbursement because they paid more of the decedent’s medical bills than the other heirs, they may be able to seek those additional monies via a creditor’s claim. If you feel you deserve a larger inheritance, contact a probate litigation lawyer near you.

When do I contact a probate lawyer?

Contact a probate lawyer as soon as possible. The sooner you contact a probate lawyer, the more they can do to protect your rights and get your rightful inheritance. Generally, it’s much easier to earn claim to your rightful inheritance through litigation BEFORE the estate assets have been distributed. What’s this mean? Well, imagine the estate is distributed equally to three surviving children, and all three children have received their assets. Then, one child pursues litigation to get an additional $100,000 from the estate, because they paid $100,000 out of their own pocket for the decedent’s medical bills. Now, the other two children have to repay $50,000 each. What if they already spent all the money? Suddenly, it becomes a longer, more litigious process than if the $100,000 was paid to the child before any estate distributions were made.

Do I need a probate lawyer near me?

We recommend finding an experienced probate lawyer familiar with the county probate court in the county where the decedent lived. For example, if the decedent lives in Los Angeles, we recommend working with a probate litigation lawyer in Los Angeles. A Los Angeles probate litigation lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.

Have questions? At RMO, we protect people like you everyday.
Call (424) 320-9444 or email [email protected]

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About RMO Lawyers, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit https://rmolawyers.com/.

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About the Author

Scott Rahn, Founding Partner

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

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