What an Executor of a Will Can and Cannot Do
Some probate processes run smoothly and spend little time in probate court. Others result in disputes, mediation, and even litigation. However, central to any smooth probate process with a will or other legal document in place is the executor, who has numerous roles and responsibilities to ensure the seamless distribution of assets according to the instructions given to them.
Typically, the deceased appoints someone as the executor that they trust to follow their guidance. Executors are often family members or close friends that are not only trustworthy but also willing to take on the often significant fiduciary duties associated with the position.
Many people choose an adult child as executor, as they are most likely to outlive them. While it is often recommended to appoint a sole executor to simplify the process and avoid disputes, those with adult children may elect to appoint co-executors.
While highly important in the probate process, executors are not all-powerful, leading other beneficiaries to potentially question what an executor of a will can and cannot do.
If you are concerned by the actions taken by the executor of a will in which you are a beneficiary or otherwise interested party, or have questions about executor responsibilities or what an executor can and cannot do when carrying out their role, Hardie Alcozer can help.
We can help you understand your position, raise legal action during the probate process and ensure that the chosen executor meets their legal fiduciary duty through their actions.
Call our offices now at (512) 374-4922 to find out more about how we can be of assistance.
An Overview of the Executor's Responsibility to Beneficiaries
The executor has a fiduciary duty to the beneficiaries and is legally compelled to ensure the deceased person's assets are distributed according to their wishes. Due to the trust placed in them, they do have broad powers to ensure that they can meet their obligations.
The executor must:
Locate the deceased's last will and testament, if there is one.
Retain a probate lawyer to ensure the estate plan is executed in accordance with Texas law
Identify probate assets and take reasonable steps to protect those assets prior to their distribution
Inform beneficiaries of the contents of the will and serve as a point of contact for developments in the probate process
Contact other interested parties, even if they are not direct beneficiaries, based on the will's contents and any obligations - the executor of the estate should notify creditors, for example, and ensure there is enough money to handle repayments and manage account closures
Manage bank accounts and the estate tax return, and continue bill payments and paying debts as required
Distribute estate assets in good faith to each beneficiary
In pursuit of meeting those obligations to beneficiaries, executors can:
Transfer assets
Sell assets and property
Access and use bank accounts
Communicate with third parties on behalf of the estate, such as known creditors
Typically, the executor will also be responsible for funeral expenses, paid by the estate, and for maintaining records of all transactions and asset transfers.
What an Executor Cannot Do
While an executor has broad access to accounts, finances, and information, they retain their fiduciary responsibilities to heirs and beneficiaries. In practice, that means that they should not treat the contents of the estate as personal property and should act in such a way that beneficiaries receive the best possible distribution of estate assets.
Selling Estate Property - Most of the time, they can
Many questions about what an estate executor can and cannot do revolve around their decisions to sell property. Specifically, can an executor sell property to themselves?
There is nothing to legally prevent an executor from selling something from the estate to themselves during the course of managing assets, as long as they remember their fiduciary duties.
For example, the executor cannot borrow estate funds to subsidize any purchase from their own pocket. They must also always strive to achieve fair market value when disposing of assets, especially when doing so to their own benefit.
Essentially, the role of executor is not about personal gain beyond anything they receive as a beneficiary in the will. If they do seek their own personal gain above beneficiary interests, that is called self-dealing. Any instances of self-dealing in an open probate case can open themselves up to civil litigation, as heirs will typically consider attempts by the executor at self-dealing as illegally depriving them of their rightful inheritance.
The failure to consider the fair market value and real property prices is one of the most common reasons why heirs may contest probate matters.
Changing the Will
An executor cannot make any adjustments to the will when distributing assets and other estate property. The will is considered frozen in time when the deceased signed it. It is the executor's job to carry out the conditions of the will as it is, and no one has the right to make modifications.
Asserting Ownership of Unclaimed Inheritances
The executor of a will has a responsibility to find each beneficiary listed in the legal document. Even family members may not be aware of all heirs listed or their current location. Given the role of an executor in the distribution of an estate, it makes sense that any unclaimed inheritances automatically revert to them.
An executor must prove that they have taken all reasonable steps to locate an heir, including contacting their friends and family where possible. If their efforts prove unsuccessful, a court will often decide how their share of the estate is managed.
While not typically filed with such instructions, some wills detail what the executor should do with parts of the estate that cannot be distributed as planned. In some cases, a court may treat the intended beneficiary as deceased and distribute assets according to Texas specifically governing deceased beneficiaries.
The remaining assets from the estate may also be held in trust to afford the executor more time to locate the beneficiary. However, at no point does the executor hold priority over other heirs, and an executor cannot decide how unclaimed assets are distributed unless specifically afforded that right in the will.
What If The Executor Cannot Be Located?
In some cases, the individual appointed as the executor of an estate may become unavailable. If the heirs cannot locate the individual named in the will's instructions or the chosen person dies, the probate court will appoint a new executor of an estate in the role of the deceased's personal representative.
The court issues "letters testamentary", which affords their chosen executor the same powers and responsibilities as the original candidate. While not chosen specifically by the deceased, they have the same fiduciary duty to the estate's assets and must work in the best interests of the beneficiaries to meet their obligations.
In some cases, the court may be required to appoint a new executor to distribute assets even if the original individual can be located. If they are considered incapacitated or convicted of a felony, they may be determined incapable of making financial decisions, maintaining accurate records, and distributing the remaining assets.
Speak to a Probate Attorney from Hardie Alcozer Today
The rules governing what an executor cannot do with an estate are enshrined in law and typically overseen by the probate court. In the most extreme cases, an executor that fails to live up to their responsibilities can be held in contempt of court and stands to be dealt with through the legal system.
Heirs and beneficiaries also have the right to ensure that the executor lives up to their fiduciary duty and handles the estate in line with the wishes expressed in the will. That means that the executor needs to handle the estate with the interests of all beneficiaries in mind and not for personal gain.
If you need legal advice on anything to do with the probate process, our team is here. You may have concerns about the suitability of an executor and their handling of an estate and want to explore your options for contesting their actions.
Alternatively, you may be an executor tasked with handling a deceased person's estate and require guidance from a skilled probate lawyer to provide heirs and beneficiaries with the outcome they deserve.
No matter why you need advice on probate law, you can rely on our fiduciary duty to you and the estate to ensure all parties receive what they deserve.
Call our law offices in Austin, Texas today to find out more about how we can help with your specific circumstances at (512) 374-4922.