When a loved one passes away, the estate administration process can be overwhelming for those left behind. At the heart of it all is the executor of the will, who carries out the deceased’s final wishes. But what can an executor do and what are the boundaries they can’t cross?
This guide will cover the executor’s role, their fiduciary duties, and the challenges they may face during probate. We’ll also look at how executors deal with companies that buy houses, which can be a lifesaver when dealing with inherited property. These companies offer quick cash sales that can simplify the process of selling estate assets, especially when a fast sale is needed or wanted.
Who is the Executor of a Will?
An executor, also known as a personal representative, is the person named in the will to manage the deceased’s estate. This important job involves gathering assets, paying debts, and distributing the remaining assets to the beneficiaries named in the will. The executor’s job is to carry out the will’s instructions while following the state’s estate administration laws.
The named executor has a fiduciary duty to act in the best interest of the deceased’s estate and its beneficiaries. This means they need to have a good understanding of probate law and often need the guidance of an estate planning attorney. They have to navigate legal procedures, manage finances, and communicate with all parties involved.
Can An Executor Change a Will On Their Own
One of the most common questions in estate planning is whether an executor changes a will. The short answer is no – an executor cannot and can’t change the will on their own. The will is a legal document that represents the deceased’s final wishes, also known as the testator. If an executor tries to change the will’s instructions without proper legal grounds they would be breaching their fiduciary duty and could face serious legal consequences.
But there are times when such changes to a will might be necessary or allowed:
- Court-ordered changes: In rare cases, a probate court may order changes to a will if it’s found to be invalid or if there are challenges to its contents.
- Ambiguous language: If the will has ambiguous language the executor may need to seek legal advice to interpret the testator’s intentions.
- Family settlements: In some states, all beneficiaries may agree to change the distribution of assets but this requires unanimous consent and often legal oversight.
Important to note that while an executor can’t change the will, they do have some latitude in how they interpret and carry out the last will and its instructions. This latitude must always be exercised in the best interest of the estate, the new executor, and its beneficiaries.
Can the Executor of a Will Override Beneficiaries
Another common question is can an executor override beneficiaries. Generally, an executor can’t override the beneficiaries’ rights as outlined in the will. The executor’s job is to faithfully execute the will’s instructions, not make unilateral decisions that go against the testator or trustee’s wishes.
But an executor’s actions might seem like they’re overriding other beneficiaries’:
- Asset management: Executors have the power to manage estate assets which might include selling property or investments. This could be to pay debts or taxes even if beneficiaries don’t agree.
- Timing of distributions: The executor decides when distributions are made which might not be what beneficiaries expect.
- Interpretation of will: If the will has ambiguous language the executor might have to interpret the testator’s intentions which could lead to disagreements with beneficiaries.
If beneficiaries feel the executor is overstepping their authority they can challenge the executor’s actions in probate court. In those cases, all parties should seek further legal counsel and advice.
What Can the Executor of a Will Not Do?
Understanding what an executor can’t do is important for both executors and beneficiaries. Here are some things an executor generally can’t do:
- Change the will: As mentioned above an executor can’t alter the will.
- Fail to follow the will’s instructions: The executor must follow the will’s directions unless they’re illegal or impossible to do.
- Favor one beneficiary over others: The executor must treat all beneficiaries fairly and as per the will.
- Mix personal and estate assets: Executors must keep estate assets separate from their personal property.
- Fail to pay taxes and debts: Executors must ensure all estate taxes and valid debts are paid before distributing assets.
- Refuse to communicate with beneficiaries: Executors must keep beneficiaries informed of the estate administration process.
- Make decisions for personal gain: All decisions must be in the best interest of the estate and its beneficiaries.
- Ignore state laws: Executors must follow state laws governing probate and estate administration.
Fiduciary Duties
The concept of fiduciary duty is at the heart of the executor’s job. A fiduciary duty is a legal obligation to act in the best interest of another party. For executors that means always acting in the best interest of the estate and its beneficiaries. Here are some of the key fiduciary responsibilities:
- Loyalty: Putting the estate and beneficiaries above their own.
- Care: Managing the estate’s assets prudently.
- Impartiality: Treating all beneficiaries fairly and without bias.
- Accounting: Keeping records of all estate transactions.
- Disclosure: Informing beneficiaries of the estate administration.
Not fulfilling these fiduciary duties can result in the executor being removed or sued for breach of fiduciary duty. The probate court will oversee the executor’s actions to ensure they fulfill their fiduciary responsibilities.
What Can The Executor Do?
While there are many things an executor can’t do, they do have a lot of power over the beneficiary’s inheritance estate. Here are some things an executor can do:
- Locate and manage assets: The executor can gather and manage all assets of the estate.
- Pay debts and taxes: Executors are responsible for paying the estate’s debts and taxes.
- Distribute assets: Once debts are paid the executor can distribute the remaining assets to beneficiaries.
- Hire professionals: Executors can engage attorneys, accountants, or other professionals to help with estate administration.
- Sell property: If necessary to pay debts or as per the will executors can sell estate property.
- Represent the estate in legal matters: Executors can act on behalf of the estate in any legal proceedings.
- Make investment decisions: Executors can make prudent investment decisions to preserve or grow the estate’s assets.
Can the Executor Not Pay a Beneficiary?
In most cases by law, an executor can’t refuse to pay a beneficiary what they are entitled to under the will. However, there are some exceptions:
- Insufficient funds: If the estate doesn’t have enough assets to pay all beneficiaries state law will dictate how the remaining assets are distributed.
- Contingencies in the will: Some wills have conditions that beneficiaries must meet before they can receive their inheritance.
- Creditor claims: Valid debts and taxes must be paid before beneficiaries receive their inheritances.
- Legal challenges: If there’s a dispute over the will or a beneficiary’s claim the executor may need to delay distribution pending court resolution.
If an executor refuses to pay a beneficiary without a valid reason the beneficiary can then seek legal counsel and advice and possibly take the matter to probate court. The court can compel the executor to make the required payments or even remove the executor if they are found to be in breach of their fiduciary duty.
When to Get Legal Advice
Estate administration can be complicated and there are many situations where a named beneficiary or executor may need to seek legal advice:
- Ambiguous will language
- Beneficiary disputes
- Complex assets or large estates
- Creditor claims against the estate
- Tax issues
- Legal challenges to the will
- State-specific probate laws
- Conflicts of interest
Beneficiaries may also seek legal advice if they believe the executor is not fulfilling their fiduciary duties or is mismanaging the estate. An estate planning attorney can advise beneficiaries on their rights and options.
How to Sell an Inherited House
One of the tasks an executor may have to do is sell inherited property. If you’re thinking of doing this here are the steps to follow:
- Get proper authorization: Make sure you have the legal right to sell the property.
- Get a professional appraisal: Know the true market value of the property.
- Decide on a selling strategy: You can list with a realtor or sell to a cash buyer.
- Check out real estate photography and staging tips to make the property more attractive.
- Research companies that buy houses in your area.
- If you need to sell your house fast in Dallas or are looking for cash home buyers in Fort Worth consider companies like Four19 Properties. They buy houses as-is which can be helpful when dealing with inherited property.
Potential Issues and How to Fix Them
Executors will face many potential challenges, during the estate administration process. Here are some common problems and how to solve them:
- Beneficiary disputes: Clear communication and impartiality are key. If conflicts persist mediation or legal intervention may be required.
- Complex assets: For estates with businesses, investments, or international assets professional advice is necessary.
- Creditor claims: Executors must thoroughly review and address all valid creditor claims against the estate.
- Tax issues: Estates may owe income tax, estate tax, and possibly inheritance tax. Professional tax advice is often needed.
- Unclear or contested will: If the will is ambiguous or someone contests the will legal advice is required.
- Time management: Estate administration can take time. Executors should be prepared for a long process and communicate timelines to beneficiaries.
Summary
The executor plays a critical and crucial role in making sure the deceased’s wishes are carried out correctly and fairly. While executors have a lot of power and responsibility they must always stay within the legal boundaries and in the best interest of the estate and its beneficiaries.
Knowing what an executor or trustee can and can’t do is important for both executors and beneficiaries. Executors must follow the will, state laws, and their fiduciary duties. They can’t change the will, override or protect beneficiaries’ rights, or act in their self-interest.
If you’re an executor or a beneficiary with estate administration concerns, reach out to an attorney. An experienced estate planning attorney can guide you through the probate process.
Remember if you have inherited property and need to sell your house fast in Dallas or looking for cash home buyers in Fort Worth companies like Four19 Properties can help. They buy houses as-is which can be helpful when dealing with an estate.
Probate and being an executor is tough but with the right information and help you can carry out the deceased’s wishes and respect the best interests of all the beneficiaries involved in the will.