The executor of an estate has a host of responsibilities — from notifying heirs to managing assets. But an executor’s authority isn’t endless. There are limits on what an executor can and cannot do.
If you’ve been named an executor, a couple basic rules of thumb are that you can’t do anything that disregards the provisions in the will, and you can’t act against the interests of any of the beneficiaries.
Sounds pretty straightforward, right? Sometimes it is. But depending on the complexity of the estate, figuring out the bounds of your role as an executor could be challenging.
Before we get into the nitty gritty about what you cannot do as an executor, let’s make sure you’re clear on what you can (and sometimes, must) do.
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What an executor can do
As the executor of an estate, you are responsible for managing the probate process, which means you’ll be interacting with the probate court and making decisions about the handling of probate assets.
You will:
Open probate with the court
Identify the deceased’s assets
Provide notice to heirs and interested parties
Manage the administration of the estate
Pay the deceased’s debt from the estate
Distribute funds or property to the heirs
Close the estate
Carrying out all these duties means that you can make a lot of the decisions about what happens with the estate since you are managing the deceased’s property and assets until they are distributed to the heirs.
The executor has the final say on a lot of matters. But, as we stated above, there are limits.
What an executor cannot do
As an executor, you have a fiduciary duty to the beneficiaries of the estate. That means you must manage the estate in the best interests of the beneficiaries (and not yourself), taking care with the assets. So an executor can't do anything that intentionally harms the interests of the beneficiaries.
As an executor, you cannot:
Do anything to carry out the will before the testator passes away
Neither the executor nor the beneficiaries have any rights with regard to the estate before the testator (the creator of the will) passes away. Just because you’re named in the will doesn’t mean you get to start making financial decisions about how your Aunt May is handling her assets.
Sign an unsigned will on behalf of the deceased
If the deceased died without a signed will, the deceased died without a will. No one else can sign it on their behalf, and the estate will be managed in accordance with that state’s laws of intestate succession.
Take action to manage the estate prior to being appointed as executor
To fill out the petition for probate, you may have to do some basic analysis to determine what’s in the estate. But taking action beyond that — selling assets or making distributions — is not allowed until the court has approved your petition and appointed you as the executor.
Sell assets for less than fair market value without agreement of the beneficiaries
Your fiduciary duty requires you to treat the estate’s assets for the benefit of all beneficiaries and to take good care that the beneficiaries receive the portion of the estate indicated in the will. Parting with assets for less than what they’re worth — for instance, my offering them at a discount to friends — is in direct opposition to that duty.
Change any provisions in a will
Just like you can’t sign the will, you cannot change any provisions in the will. If you really like your cousin and think that he should’ve been named in the will, that’s unfortunate. He can file a petition with the court contesting the will if he’s an heir-at-law, but you have no authority to make changes to the will unilaterally..
Stop the beneficiaries or heirs from contesting the will
When beneficiaries or heirs contest the will, it’s never fun for the executor. However, it’s their right to do so, and you can’t stop them.
What happens if you mismanage the estate?
Mismanaging an estate is not without consequences. If an heir or beneficiary believes you are not appropriately fulfilling your legal obligations, they have the right to file a petition with the probate court to get a full accounting of the estate’s assets or to have you removed as the executor. Serious violations could also result in your being held in contempt of court or being the subject of a civil lawsuit.
Of course, most individuals who serve as executors take their responsibilities seriously and handle the estate with care. Knowing what your duties are and what an executor can and cannot do will start you off on good footing for carrying out your task successfully. For more executor tips, be sure to check out our guide: “How to be a good executor.”
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