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 is typically selected by the deceased and named in the will. Executors can exercise considerable judgment when managing estate assets, including:
- Hiring a lawyer to assist with the estate administration
- Marshalling estate assets
- Paying estate debts and taxes
- Selling property
- Distributing estate assets according to the will
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.
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. Executors are legally required to distribute estate assets according to the will, so they cannot take estate property unless it is specifically given to them in the will and the court approves the distribution of that property to them in an approved petition for final distribution.
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 simply take money from an estate bank account. 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.