What Can Executor Do and Cannot Do

Man holding a folding with executor nameAn executor is the person or entity nominated in a will to administer the estate of the deceased person as directed by the will. The executor’s duties include settling the estate’s debts, selling estate property if necessary, and distributing assets to heirs and beneficiaries in accordance with the will.

The executor’s job is potentially a complex job, depending on the size of the estate. The executor is responsible for protecting the interests of the estate as it goes through probate.

It is mostly an administrative job, but the actions of an executor of the estate can impact the livelihood of those who are or should be beneficiaries of the will. As such, legal action is sometimes necessary to stop a wayward executor of the estate or to help an executor protect the estate.

The experienced trust and will inheritance lawyers of Albertson & Davidson represent individuals who are facing legal battles over wills and probate matters in California. Here is a look at some issues an executor may face and what is allowed under California law.

Can an executor of a will be a beneficiary?

Yes, the executor of the estate also can be a beneficiary of the will, and often is. Many people will select one of their grown children to be their executor. Children are primarily the beneficiaries of parents’ wills.

In California, an executor must be at least 18 years old and of sound mind. A probate judge must formally appoint the executor. If the judge finds the person named incapable of performing the job correctly, he or she may appoint someone else and/or remove an appointed executor.

What are the duties of the executor?

The executor settles the accounts of the estate and oversees the distribution of assets as directed by the will or, in the absence of a will, as state law directs. If any person or entity makes a claim against the estate, the executor is responsible for settling it in the best interests of the estate, including by mounting a legal defense, if appropriate. If there are assets owed the estate, the executor must seek them, including by filing a lawsuit, if necessary.

Other duties of the executor include:

  • Identifying all assets of the estate and ensuring their security and upkeep.
  • Establishing bank accounts as needed to ensure cash flow required as the estate is closed.
  • Paying the estate’s bills, including taxes.
  • Collecting debts owed the estate.
  • Closing accounts by notifying banks, brokers, governmental agencies, and terminating leases, contracts and subscriptions.
  • Locating heirs and/or filing requisite notices and keeping beneficiaries advised of the progress of the estate.
  • Supervising distribution of the estate’s assets and filing the necessary petitions with the court.
  • Hiring at estate expense any appraisers, accountants, lawyers, or property managers required to assist with duties of the executor.
  • Filing accounting and status reports as required by the court.

Can the executor decide someone doesn’t get what the will says?

No. The executor must abide by the will as written. The job of the executor is to carry out the deceased person’s final wishes as stated in their last will and testament.

However, the executor has some flexibility to sell property or assets not designated for disbursal to a specific beneficiary if necessary to pay bills or to meet requirements of the will, such as to split the remaining assets evenly.

An heir or beneficiary who thinks the executor is not doing as the will directs or is not acting in the interest of the estate has the right to appeal to the probate court.

Can I sue the executor of an estate?

If you are challenging how the assets of an estate are being distributed through probate, you would not sue the executor of the estate. The State of California oversees distribution of deceased residents’ assets through local probate courts. A person contests a will through probate litigation.

You would contest the contents of a will by moving immediately after the deceased’s death to object to the executor’s petition to probate the will. If probate has already occurred, you have 120 days from the hearing date to contest a will. You would need to state your objections to the will as written and what remedies you seek and provide proof that your allegations are valid and your demands are reasonable. 

If you object to how the executor is handling the estate, you could respond to a Notice of Proposed Action or apply to the court for an order preventing the executor from taking a specified action. As the executor settles the estate, he or she should send beneficiaries a Notice of Proposed Action when the executor make major moves, such as selling a house or compromising on a monetary claim. You can object by returning the form or by asking the probate court for an order restraining the executor from taking a proposed action that you know is being contemplated. This automatically requires the executor to explain to the court what he or she is doing before moving ahead.

Can I have the executor of the estate replaced?

If you are a beneficiary and feel like the executor is not fulfilling the duties of the job correctly, you may ask the court to remove and replace the executor.

Under California law, an executor of a will may be removed from office if he or she:

  • Has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.
  • Has shown himself or herself to be incapable of properly executing the duties of the office or is otherwise not qualified to serve as executor.
  • Has neglected the estate or has neglected any of the duties of an executor.
  • Should otherwise be removed for the necessary protection of the estate or interested persons.
  • Has violated any law requiring removal.

A petition for removal would allege and provide evidence that the executor is unfit due to negligence, misconduct or incapacity, and is typically filed along with a petition suggesting a replacement executor.

Note that under California law, you may seek removal of an executor of the estate before they take action detrimental to the estate or its beneficiaries. 

Can the executor sue a beneficiary of the will?

Typically, there would be no reason to sue a beneficiary of a will over their role as a beneficiary. Beneficiaries have no express duties to the estate and no fiduciary duty to the executor that could be violated.

However, the executor of the estate retains the right to contest the will if, for example, the executor can show that a beneficiary came into their inheritance through subterfuge, improper influence or malfeasance.

Such a challenge might be based on:

  • Undue influence / elder abuse. California law defines undue influence as overcoming an elderly or infirm person’s free will and persuading them to give the bad actor money, houses or other property.
  • Fraud. If a beneficiary made a false statement to the person making the will to ensure a will or trust was worded to benefit them, the document or a portion of it can be ruled invalid.
  • Mistaken intent. This requires presenting clear and convincing evidence that the will misstates the intent of the person making the will at the time the will was drafted. The petitioner must also show what the person’s actual specific intent was.

If you believe a beneficiary has stolen from the estate, you may the seek return of what was taken through a formal complaint or petition filed with the probate court. Stealing from an estate is usually handled as a civil matter, unless the value or extraordinary circumstances of the theft elevate the matter and a local prosecutor chooses to pursue it.

Usually, personal property or money is returned through negotiations or another informal resolution rather than a formal claim against a family member. There is a limited amount of time to file to contest a will. If an initial entreaty for returning items or funds taken is refused, you should speak with an inheritance litigation attorney promptly.

In egregious cases of theft from an estate, the petitioner might seek doubled or tripled damages, punitive damages, disinheritance of the abuser, attorney’s fees and/or costs. 

Contact a CA Inheritance Litigation Attorney

The attorneys at Albertson & Davidson, LLP are California trial lawyers who focus on trust and estate litigation to protect our clients’ inheritance. If you are the beneficiary of an estate in probate and suspect the actions of the executor of the estate or other beneficiaries are harmful to your interests, we are here to help. Our knowledge of estate and probate matters and civil litigation makes us powerful adversaries when contesting a will. Our law firm’s motto is: We stand. We fight. We win.

Contact us online or at (877) 637-7234 for a free initial consultation. Albertson & Davidson has offices in Los Angeles, San Francisco, San Diego, Carlsbad, Redwood City and Irvine.