When a person having property and assets dies, two scenarios occur, either there’s a will for inheritance or there isn’t. Keeping the matter of no will aside, in case there is a will for that deceased person, there are likely chances that there is a named executor in the will who is responsible to protect the inheritance and distribute it according to the wishes of the deceased. This raises the question ‘can the executor of a will take everything’ legally, and the answer is a little more complicated than plain yes or no.
Fortunately, this article answers some very important questions regarding the executor of a will, how it works, who can be an executor, what happens if you are not satisfied with the process, and more. Keep reading to find out what the law dictates in the process.
1. What does an executor of a will do?
Who is an executor?
Starting the questions by stating that an ‘estate executor is a person who is in charge of handling and distributing the entire estate mentioned in a deceased person’s will. Usually how it works is, the deceased person has to have mentioned the name of the executor they want to handle their estate in their will.
Who can be an executor?
Usually, local state laws define who can and cannot become an executor for a testator, and it can differ from state to state. California in particular allows anyone above the age of 18 to be appointed as the executor. After that, it entirely depends upon the testator, while they are making their will, who they want to appoint as the executor. Usually, it is either a friend or someone from the family, also a beneficiary within the will. But it can also be an outsider whom the deceased person can trust to implement their wishes regarding their estate after their death.
What do they do?
Managing a deceased person’s estate includes a bunch of tasks that need to be done as part of distributing the will according to the wishes of the deceased. Here’s everything that falls under an executor’s responsibilities regarding a will.
- Interpreting a will and distributing it as stated
- Managing and protecting all of the estate included within the will
- Mediating any conflicts between beneficiaries regarding the will
- Applying for the probate process on behalf of the deceased and beneficiaries
- Investing the estate or assets if needed
Can they access bank accounts?
When you are responsible for handling someone’s estate, it sometimes requires you, the executor, to handle assets within the deceased’s bank account. It can be used to pay taxes or estate debts on behalf of the deceased person. Apart from any requirement on behalf of the deceased person, the executor cannot use the money from their account for their benefit.
What happens in the case of an invalid will?
In case the will is either not present or invalid, the estate is handled under intestacy laws of a state that determine and overlook the entire distribution of the will. In this scenario, since there is no will or because there’s an invalid will, there is most likely no executor either. The court appoints an ‘administrator’ to look after the entire process so that everything can go smoothly in the absence of an executor.
2. Can the executor of a will take everything?
Even though it is already made clear that the sole job of an executor is to maintain the handling and distribution of a decedent’s will, it does bear some responsibility to restate that no, an executor of a will cannot take everything that the deceased person leaves behind. In a very rare case where the executor is also the sole beneficiary of the will, this is possible and can be done, but otherwise, there is no reason why that should happen.
An executor cannot alter the terms or requirements within a will to their benefit, they have to administer the entire estate as it says in the document. The law protects the estate and the interests of the beneficiaries so the executor cannot extend their authority outside of what is clearly stated within the will.
3. What are things the executor cannot do?
Apart from all the questions mentioned here, there are several authority-related questions people tend to have about whether or not an action falls under the executor’s list of duties. Since the list of what an executor can do or what is usually included in their list of duties leaves a lot of loopholes, here’s a list of things an executor cannot do.
- Get any share of the estate from the will apart from the executor fee or the beneficiary share if they are one. An executor cannot profit from their duty apart from their fee that is mentioned within the will
- On the same train as the above point, but even apart from profiting directly, an executor cannot prioritize their interests over the state’s interests
- An executor cannot pass on their responsibility to another person unless the will allows them to do so clearly
- Use the estate to purchase any assets without the complete permission of all the beneficiaries named in the will
- Modify or edit the will without permission from beneficiaries or court
- Modify or edit the life insurance policy for the deceased
- Invest any of the estate assets on their own, for their profit, or otherwise
Apart from investment, there are also questions regarding whether the executor can sell the estate altogether, and the law depends upon the state you are in. For California, the executors are allowed to sell the property after it is appraised and bring in 90% of the appraised value.
4. Does the probate process protect the beneficiaries?
As illustrated through the various dos and don’ts for an executor, there are clear boundaries set according to law, that protect a deceased person’s will and estate. This goes the same in either case of having a will or not. Having a will is easier because then the state takes care of fewer things, while in the case of no will, the intestate succession law in a state is followed. The checks and guarantees within a legal system ensure everything is proceeding legally, and there is no bias between the executor and the beneficiaries.
5. Can an executor make decisions about inheritance on behalf of the deceased?
When an executor is appointed and given the responsibility for an estate by a testator, they have the fiduciary responsibility to make sure everything goes right. But that’s about the only extension of their authority they have over the will and the estate. It cannot be increased or expanded according to an executor’s own choice or preference. Even handing over the responsibility of an executor to another person requires a lot of authorization and proper documentation.
All this to say, the executor cannot make any decisions regarding the estate for which they are responsible, outside of what is written in the will. They cannot make decisions on behalf of the deceased, all they do is interpret the words in the will and carry it out as it says. Selling, renting, or buying from the estate is all prohibited outside of the will’s requirements, and allowed only in certain circumstances where the state law does not limit it.
6. What happens if there’s only one executor and beneficiary?
There are unusual but real circumstances in which there is only one executor and beneficiary in the case, both the same. It could also be you. In this scenario, the executor cannot withdraw or take money directly from the estate funds or account despite being the beneficiary as well. The proper flow of things is important to ensure it is all done properly and smoothly, without any loopholes. It is not until after all the estate funds are fully distributed, approval has been provided by the court on the petition for the estate, can the executor access the money that goes into their share of part of the will. It is all easy to understand once you understand your local law because most of the time the little differences in legal proceedings are due to local laws.
7. What to do if the executor fails to distribute inheritance according to will?
Finally, onto the last, and quite possibly most asked question regarding this is what happens when you either suspect foul play or for any other reason, the executor fails to distribute the will properly. There are also scenarios where executors go as far as denying to distribute the will, which is unlawful. In this case, you can hire an Estate Litigation attorney that takes the executor to court, where they are asked for a legitimate reason for not distributing the will yet, and without it are ordered to distribute it according to the procedure.
Even in scenarios where you feel they will be more ambiguous or that it has not been interpreted accurately by the executor you can appeal the matter in court and ask for further interpretation in the matter. The fight is not entirely lost even if you have an uncooperative executor.
Can the executor be removed?
We have already mentioned before that if the executor wants out of the process, they can go through with transferring the authority as the executor, granted the deceased person allowed it in their will. There is another scenario such as the one we looked at in the question above, and it is what to do when you are not happy with the process and practice of the executor. There is, fortunately, a way you can remove the executor from their position using the law. The State Probate Code 8502 of California allows you to move towards removing the executor in case:
- The executor has squandered, mismanaged, stolen, or defrauded the estate or plan to do so
- They do not meet the appointment criteria or proof of incapacitation
- The executor neglects duties or wrongfully ignores the estate for an extended period
- To protect the estate or persons interested
- A state statute also allows removal for another reason
- They can’t provide a full accounting of estate assets: fail to comply with requests for Notice of probate court application, Review of the Will, and Documented account of the estate
Before you take legal action against the executor ask every possible critical question to yourself in the matter to ensure you have covered all ground, tried your hand at all methods of communication and cooperation. If everything has been tried, your decision to remove the executor will be the right choice to make from here. After a thorough examination of the executor’s abilities, if your claims about their inefficiency or lack of ability are proved and the judge agrees, the executor will be removed.
Hopefully, this will have helped you understand how the answer to ‘Can the executor of a will take everything’ will always be no unless they are the sole beneficiary along with being the executor.
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