What An Executor Cannot Do (25 Startling Mistakes People Need To Avoid)

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What An Executor Cannot Do - Can An Executor Sell Property To Himself - Can The Executor Of A Will Take Everything - Can An Executor Sell House

Wondering what an executor cannot do? 

This article is going to deep dive into everything you need to know. 

Including what’s legal and what’s illegal for them to do.

And at the end we are answering the top 15 questions we get about what an executor cannot do. 

Let’s dig in.

Table of Contents

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What Is An Executor - What Does An Executor Of A Will Do - What An Executor Cannot Do

What Is An Executor?

An executor is a person who is in charge of distributing your estate.

An executor gets named in your will.

An executor handles:

  • paying off creditors
  • appraising your property
  • distributing it to your beneficiaries
 
What Does An Executor Of A Will Do - Can An Executor Sell Property To Himself - What If The Executor Does Not Probate The Will

What Does An Executor Of A Will Do

An executor is someone that’s given the legal responsibility to take care of a decedent’s financial obligations. 

Executors get named in a will or are designated by the probate courts. 

They take care of everything from distributing property to paying debts and taxes. 

An executor has a fiduciary responsibility to the estate. 

This is important when discussing what an executor cannot do. 

An executor that steals from an estate may get charged with contempt in a probate court. 

An executor who is in contempt of court can get fined and possibly jail time. 

Next, we’re covering the executor’s responsibilities to beneficiaries. 

Related: Difference Between Executor and Trustee

Can The Executor Of A Will Take Everything

No, the executor of a will cannot take everything unless they are the sole beneficiary of the will.

The executor has a fiduciary responsibility to follow the will’s instructions.

If they do not, they can face fines, litigation, and get replaced with a new executor.

An executor will have to pay off creditors and debts with the estate.

After that, they are free to distribute the estate per the will’s instructions. 

Next, let’s go over what does an executor of a will do.

Executor Responsibilities To Beneficiaries

The most important executor’s responsibility to beneficiaries is telling them they are beneficiaries. 

Beneficiaries have the right to know that they have been included in a will. 

This allows them to have a chance to contest the will if there are any issues.

What an executor cannot do is NOT notify the beneficiaries. 

The executor has to give them time to contest the will.  

But let’s talk about all of the executor’s responsibilities to beneficiaries. 

The executor’s responsibilities to beneficiaries are to:

  • locate the will
  • retain a probate attorney
  • open probate with the courts
  • identify and protect the deceased person’s assets
  • review the will
  • notify the heirs
  • notify the appropriate parties
  • continue paying bills for the estate
  • value the property in the estate
  • pay debts from the estate
  • distribute the assets of the estate
  • file the paperwork to close the estate  
      

An executor’s responsibility to beneficiaries is a fiduciary responsibility to manage the probate process.

Let’s dig deeper into what an executor cannot do, though.

Related: 7 Useful Things You Need To Know About Quit Claim Deeds

What An Executor Cannot Do

What an executor cannot do is:

  • not follow the will
  • breach fiduciary duty
  • fail to act
  • self-deal
  • embezzle property 
  • neglect the estate
      

The most important thing for what an executor cannot do is not being transparent with the beneficiaries. 

A List Of What An Executor Cannot Do

There’s a long list when it comes to what an executor cannot do. 

And you probably want an all-inclusive list of what an executor cannot do. 

So, here’s a summary of what an executor cannot do:

  • carry out the will before the testator dies
  • steal from the estate
  • sign the will on the behalf of the deceased
  • change provisions in the will
  • stop the beneficiaries from contesting the will
  • take action to manage the estate prior to getting appointed executor
  • fail to follow the terms of the will
  • mismanage estate assets (bank accounts, stock, retirement accounts)
  • fail to take inventory of assets 
  • be negligent or careless in investing assets
  • sell property below market price
  • fail to distribute assets
  • fail to pay creditors
  • fail to pay estate debts
  • fail to pay funeral expenses
  • fail to file an estate tax return if required
  • fail to pay estate taxes and back income taxes
  • mismanage a testator’s business or sell it below market value
  • take over the testator’s business for the executor’s own gain
  • commingle estate funds with his personal funds
  • keep estate funds in a personal account (you need an estate account)
  • fail to communicate with beneficiaries
  • keep beneficiaries misinformed about estate and financial matters
  • favor one beneficiary over another
  • fail to settle an estate
  • refuse to distribute assets to the beneficiaries  

An executor must manage the estate as if it were their own. 

They must take care of the assets and not neglect them. 

What an executor cannot do is anything that intentionally harms the interests of the beneficiaries.

Related: Power of Attorney

Contesting An Executor Of A Will

Contesting an executor of a will isn’t allowed just because you disagree with their decisions. 

Beneficiaries may disagree with the contents of a will or decisions that executors make.

Note that attempts to contest a will that the deceased has signed and properly written rarely succeed.

But contesting an executor of a will IS possible if you can prove misconduct or incompetence. 

Misconduct usually refers to the things on the ‘what an executor cannot do’ list above. 

If you can prove misconduct, then the courts will remove the executor and find a replacement. 

If the will names an alternate executor, that will likely be the court’s choice.

Otherwise, each court has a priority list of individuals to appoint as executors.

The lists vary from court to court.

But surviving spouses and adult children are typically very high on the list.

Related: How Long Do You Have To Probate A Will?

How To Contest A Will

For how to contest a will, there are a few grounds you can contest a will on. 

The grounds for contesting a will are that the:

  • will wasn’t signed with the proper legal formalities
  • decedent lacked the mental capacity to make a will
  • decedent was unduly influenced into making a will
  • will was procured by fraud
      

The person contesting the executor of a will must be an intestate heir or a listed beneficiary. 

Just note that you have a limited amount of time for contesting an executor of a will. 

For example, most states have a 3-month time limit for contesting an executor of a will. 

This is 3 months after receiving a notice of the will’s administration. 

The courts will provide you with this notice – not the executor of the will. 

So you don’t have to worry about not getting the notice. 

Ask your family law attorney or the county clerk for a petition to contest a will. 

Suing An Executor Of An Estate

When suing an executor of an estate, it’s important to know what an executor cannot do. 

This way, you know whether or not you have grounds to sue them. 

Suing an executor of an estate for breaching fiduciary duty is possible. 

Your estate litigation lawyer will have to prove that the executor breached their fiduciary duty. 

And that they were distributing the estate in their own best interest. 

Successfully suing an executor of an estate means you can redeem monetary compensation. 

There are several reasons heirs go about suing an executor of an estate. 

Maybe you cared for your parents in their final years and spend thousands doing so. 

But at the same time, the inheritance is a 50/50 split. 

This means that you’re not getting paid back out of the estate for this. 

So your siblings are really getting an unfair share of the inheritance. 

But if your goal is to contest the distributions of the will, then you need to contest the will. 

Suing the executor won’t help you here. 

Can An Executor Override A Beneficiary - Does An Executor Have To Show Accounting To Beneficiaries - Executor Taking Money From The Estate

Can An Executor Override A Beneficiary

So, can an executor override a beneficiary?

An executor can override a beneficiary as long as they are following the will’s instructions.

Executors have a fiduciary duty to the beneficiaries.

They have to distribute the estate per the will’s instructions. 

If an executor is not following the will, the beneficiary can contest the will and pursue litigation. 

What Happens If The Executor Does Not Follow The Will - Can An Executor Of A Will Sell Property Without All Beneficiaries Approving

Important Questions About What An Executor Cannot Do

Can An Executor Sell Property To Himself

An executor can sell property to himself. 

But an executor cannot sell property to himself for below market value. 

It has to be at fair market value and not discounted. 

The executor should get the property appraised. 

Then, the executor should get the beneficiaries’ approval of the appraisal price. 

If the beneficiaries don’t agree with the appraisal price, the executor can seek approval from the courts. 

But, yes, an executor can sell the property to himself. 

Can An Executor Of A Will Sell Property Without All Beneficiaries Approving?

Yes, an executor of a will can sell property without all beneficiaries approving. 

The executor has to get the property appraised first. 

The executor of a will can sell the property at more than 90% of the appraised value without all beneficiaries approving. 

Can An Executor Sell House

Yes, an executor can sell a house. 

They have to get the property appraised. 

Then, they can sell the property at more than 90% of the appraised value. 

What To Do If The Executor Does Not Follow The Will

Wondering what to do if the executor does not follow the will? 

If the executor does not follow the will, you have two legal options. 

You can petition the court to contest the will or sue the executor of the will. 

Beneficiaries can petition the court to have the executor removed and replaced. 

But the courts will only remove the executor if it can be proven they:

  • are no longer eligible because they have been convicted of a felony after being named executor
  • are no longer suitable because they have a conflict of interest
  • have failed to carry out the wishes of the deceased or they haven’t done anything at all
  • mismanage the estate by stealing from the estate or wasting assets
        

The probate court will have a hearing where the parties involved can tell their side of the story.

Afterward, the court can remove the executor and appoint another one if they find just cause.

Your other option is suing the executor of an estate.

If you can prove that you have suffered due to their mismanagement of the estate.

For instance, this would be an option if the executor has stolen money from the estate.

There is always a chance you will be able to settle before ever seeing the inside of a courtroom.

Can An Executor Of A Will Change The Will

No, an executor of a will cannot change the will. 

They have to follow the original will without a deed of variation. 

It is the executor’s duty to:

  • follow the will
  • act in the best interests of the beneficiaries
  • carry out the probate process
      

The executor of a will can change the will if they have a deed of variation signed by every heir. 

The executor of a will cannot change a will to reduce your inheritance. 

Can An Executor Override A Will

No, an executor cannot override a will without approval from all beneficiaries.

For an executor to override a will, they have to file a deed of variation signed by every heir. 

This means that an executor cannot change a will without every benefiaries’ approval and signature. 

What Happens If The Executor Does Not Follow The Will

If the executor does not follow the will, they can get removed by the courts. 

The courts can replace an executor of a will with a new executor. 

They do this if it can be proven that the executor:

  • is not following the law
  • is not following the will
  • is not fulfilling their fiduciary responsibilities  
      

(Reference the list above for what an executor cannot do.)

Sometimes the executor of the estate does not follow the will.

If the beneficiaries experience losses, they have grounds for suing an executor of an estate. 

Executor Taking Money From The Estate

What is the recourse for an executor taking money from the estate?

The courts can order reimbursement of money for an executor taking money from the estate. 

For an executor taking money from the estate, the courts will:

  • take money from the executor’s inheritance to make up for the loss
  • force the executor to return the money
  • replace the executor with a new one
  • make the executor pay the attorney fees 
  • force the executor to waive their commission 

Executor Of Will Refuses To Pay Beneficiary

When the executor of a will refuses to pay beneficiaries, they can get replaced. 

The courts will appoint a new executor and remove the executor refusing to pay beneficiaries.

But the courts will not remove an executor if payments are delayed but not refused.  

What If The Executor Does Not Probate The Will

Wondering what if the executor does not probate the will

The executor can get criminally prosecuted if they do not probate the will for personal gain. 

If the executor does not probate the will:

  • assets will not legally transfer to heirs
  • the estate will continue to incur expenses
  • creditors can continue to pursue unpaid debts
  • executor and beneficiaries can be held responsible for expenses from the estate

Executor Not Communicating With Beneficiaries

An executor not communicating with beneficiaries is breaching their fiduciary duties. 

Their fiduciary duty is to keep beneficiaries up to date with the probate process. 

You can petition the courts to replace an executor not communicating with beneficiaries. 

Can An Executor Decide Who Gets What

Whether an executor can decide who gets what depends on the will. 

If there are explicit instructions in the will, those have to get followed. 

But let’s say the will says Jack and Jill each get 50% of the estate. 

There could be 2 houses and three investment accounts. 

The executor can decide who gets what as long as it equates to a 50% split. 

Does An Executor Have To Show Accounting To Beneficiaries

Yes, an executor has to show accounting to beneficiaries. 

Before distributing the estate, the executor has to pay off creditors. 

The executor must maintain receipts and documents to show accounting to beneficiaries. 

Protecting Yourself Against What An Executor Cannot Do

We see people pass away without wills all the time.

Their inheritance gets split up by the government.

Their spouses don’t get what they deserve.

Their kids don’t get fair splits of the inheritance.

It’s usually a mess and never turns out how the family wants it to.

Fill out the form below if you don’t want the government to be in control of your inheritance.

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