Understanding Executor Limitations
Executives cannot do things that are contrary to the benefit of the beneficiaries and the estate. This includes the limitation that an executor cannot change a will. If you suspect an executor is withholding your inheritance distributions, you have the right to take legal action. You can sue the estate or litigate to suspend, remove, or replace the executor.
Role of an Executor
An executor of a will or an administrator of an estate is the individual responsible for handling and completing the probate process for the decedent’s estate. Typically, a parent may name their oldest or most responsible child as the executor of their last will and testament. It is the executor’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 according to the last will and testament.
Duties of an Executor
Being named the executor of a will comes with 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 functions you may need to undertake:
- Locate the will
- Retain an attorney to help with the probate process
- Identify and protect the deceased person’s assets
- Review the will and keep beneficiaries informed
- Notify all other appropriate parties
- Continue paying bills as needed
- Start distributing assets of the estate to intended beneficiaries
- File the necessary papers to close out the estate
Executors and Beneficiaries
It is common for an executor to also be a beneficiary. For example, when one spouse passes away, the living spouse is often named the executor. Children can also be named both beneficiaries and executors in wills or trustees of a family trust.
Choosing an Executor
Contrary to popular belief, an executor can be a family member or friend. In many cases, parents name their spouses or children as executors. Trusted family friends, often professionals, may also be named as executors when the estate is complex or involves complicated assets or family dynamics. These individuals are chosen because they have the necessary experience, time, and capability to handle the probate process.
Executor Disqualification and Replacement
If the beneficiaries and heirs of an estate cannot locate the executor, or if the executor has passed away, the local probate court will appoint someone else to serve as the executor. The court will issue letters testamentary, which authorize someone to act on behalf of the estate.
An executor can be disqualified from their role if they are incapacitated, convicted of a felony, or have a conflict of interest that favors one beneficiary over another. If an executor cannot locate a beneficiary, they must demonstrate that they have made reasonable efforts to find the person. If the beneficiary cannot be found, their inheritance and assets will be distributed to other family members or heirs.
Fiduciary Responsibility of Executors
The role of an executor is that of a fiduciary, not a beneficiary. Executors are entitled to an executor fee for their time and effort, which is dictated by the state probate code. They may also be entitled to recover extraordinary executor fees for services that are not a normal part of the administration. If the executor is also a beneficiary, they are entitled to their inheritance distribution, just like any other beneficiary.
Legal Actions Against Executors
An executor cannot override a beneficiary or change the last will and testament. If a beneficiary feels that the executor is not fulfilling the decedent’s intent as stated in the will, they have the right to pursue litigation against the executor to ensure fair distribution.
Yes, an executor or administrator can be sued just like anyone else. If you want to challenge the distributions of a will or trust, you will need to contest the will or trust through probate or trust litigation. If you believe you deserve a larger inheritance, it is recommended to contact a probate litigation lawyer as soon as possible to protect your rights.
Finding the Right Probate Lawyer
It is best to find an experienced probate lawyer familiar with the county probate court where the decedent lived and where the administration will take place. Working with a local probate litigation lawyer will ensure they are familiar with the specific court division and can better assist you.
In summary, the role of an executor is both a privilege and a responsibility. It requires a commitment to act in the best interests of the estate and its beneficiaries, adhering to the wishes of the decedent as outlined in their last will and testament. Executors must navigate the legal and financial aspects of estate administration with care and diligence, often seeking professional legal guidance to ensure compliance with state laws and probate procedures. Understanding the limitations and duties of an executor is crucial for anyone taking on this role, as well as for beneficiaries who are reliant on their fair and competent handling of the estate.