5 Things an Executor Absolutely Can NOT Do

You’ve been named executor. While it’s an honor, remember that great responsibility comes with this appointed role. There are five clear lines you should never cross if you want to avoid legal hot water.

While wrapping up someone’s estate can feel overwhelming, it’s no excuse for taking shortcuts that could land you in the defendant’s chair. In this blog, we walk through the crucial don’ts for any executor.

From paying yourself without court approval to ignoring provisions in the will, if you do any of the following five things, you may just end up with a lawsuit with your name on it.

Change or Ignore Provisions of the Will

The terms of the will and any related planning documents dictate how to distribute assets. An executor cannot modify or ignore distribution instructions, no matter how unfair or impractical they may seem. That authority lies solely with the courts.

If beneficiaries wish to change distribution terms, they must petition the probate court to modify the will or trust rather than directly seek changes from the executor.

Even when all beneficiaries agree to an alternative arrangement, executors must keep the estate plan’s provisions the same.

Refuse to Provide Information to Beneficiaries

Fiduciary duties to the beneficiaries obligate the executor to keep interested parties reasonably informed about the estate settlement process.

That means providing a copy of the will when requested, notifying beneficiaries when probate begins, sending periodic status updates, and answering reasonable questions.

The executor of the estate understandably cannot perform every time-consuming request or constantly update interested parties. However, they cannot arbitrarily refuse to share information or withhold details without justification either.

Beneficiaries have a statutory right to stay updated on a reasonable basis.

Use Estate Funds for Personal Gain

An executor is a fiduciary and must always act in the best interest of the estate instead of their own. This duty means they cannot use estate funds for personal benefit unless authorized by the will or court.

For instance, the executor cannot pay themselves a salary beyond court-approved executor fees, hire friends or family for estate work at inflated rates, or siphon off estate assets for financial gains or personal use. All actions must benefit the estate itself and its heirs.

Make Drastic Changes to Estate Assets Without Approval

An executor may need to sell estate property to access cash for paying debts or taxes. However, they cannot make unilateral decisions to change a beneficiary’s inheritance without consent.

This limitation includes liquidating a business, terminating a lease, or significantly altering real estate holdings.

An executor should typically obtain beneficiary approval or court permission before taking disruptive actions that significantly impact estate assets.

They must balance acting decisively in the estate’s best interests while avoiding detriment to valuable assets.

Override Beneficiary Rights Specified in Estate Documents

Suppose the will or a trust designates certain beneficiary rights like a right of first refusal on real estate or mandatory payout terms. In that case, the executor cannot override or ignore these rights.

Their fiduciary duty is to uphold all valid instructions in the estate plan, not determining which to follow. Executors should also raise concerns about contradicting beneficiary rights with the probate court.

While executors hold leeway when exercising judgment for certain decisions, they must follow the estate planning documents and comply with strict fiduciary responsibilities.

How to Protect the Estate Interests and Hold Executor’s Responsible

Sometimes, an executor just isn’t the right fit. They may drag their feet on sales, dodge their questions, or want to quit but don’t address their inability to serve.

Beneficiaries can protect the estate’s interests if an executor shows incompetence or unfitness in their duties. This guide covers red flags to watch for, plus options to legally uphold wishes if the appointed administrator falters.

Warning Signs of Executor Misconduct

Below are some common signs that an estate executor may be engaging in misconduct or otherwise failing to fulfill duties properly:

• Withholding information from beneficiaries – Refusing reasonable requests for updates or important documents can signal deliberate evasion.
• Misusing estate funds – An executor cannot unjustly utilize estate assets to benefit themselves or others. Even a whiff of impropriety merits scrutiny.
• Failing to accurately inventory assets – Omitting certain assets from inventory filings is a tactic some executors use to hide mismanagement.
• Dragging out the estate settlement process – While some delays are expected, excessively drawn-out timelines often indicate negligent oversight or outright stonewalling.

These warning signs offer opportunities for beneficiaries to seek accountability from an executor for falling short of their obligations. However, proving grounds for formal removal can be challenging without experienced legal guidance.

Options for Removing or Replacing an Executor

Beneficiaries have options for legal recourse if an executor’s misconduct or wrongdoing is indisputable.

• File a petition with the probate court – Beneficiaries can submit a formal complaint seeking the court-ordered removal of an executor and replacement with an alternate fiduciary. Grounds for removal requests often include breach of fiduciary duty, criminal behavior, or wasting estate assets. Probate judges have broad discretion for determining what merits removal and replacement.
• Proving breach of fiduciary duty – Documenting how an executor’s inappropriate actions have specifically breached their good faith responsibilities to the estate can help strengthen the case for their dismissal. Experienced probate litigation counsel helps assemble actionable evidence.
• Demonstrating inability to fulfill duties – Beyond misconduct, interested parties can seek replacement when executors become incapacitated due to health issues that prevent them from actively administering the estate. However, more than “unwillingness” is required if they can still technically perform duties.

Despite the court’s discretion, the mere threat of litigation can motivate some executors to step aside voluntarily. But successful court battles are never guaranteed. An estate attorney experienced in probate litigation can advise beneficiaries on realistic prospects before moving to file removal petitions.

Working with a Qualified Probate Attorney

While executors are responsible for carrying out the administration of a deceased person’s estate, working with an experienced probate and estate planning attorney can be invaluable for navigating this process. They can assist you in avoiding legal missteps or liability in your role.

At Apple Payne Law, we can help executors to:

• Accurately interpret and file the will with the Clerk of Court for probate
• Inventory assets and create estate accountings
• Communicate properly with all beneficiaries
• Ensure accurate valuation and valid distribution
• Help resolve creditor claims or conflicts between beneficiaries if they emerge
• Provide reliable guidance on meeting court and paperwork filing requirements
• Handle the sale of property, investments, or transfer of assets if required
• Coordinate with the CPA, accountant or other tax preparer(s) for the executor as needed to facilitate accurate information for any tax returns, deductions, etc. for the estate.
• Facilitate smooth closing processes for estates of all sizes

Rather than facing tricky legal situations alone or trying to interpret unclear guidance, engaging our probate lawyers allows executors to get answers and have greater confidence they are fulfilling their duties properly. This provides helpful accountability and oversight.

If you need help settling an estate, contact us today for a consultation.