Being named as the executor of someone’s estate is an immense responsibility. As executor, you are tasked with carrying out the deceased’s wishes as outlined in their will and distributing assets to beneficiaries.
While this role gives you significant control over the estate, there are limits on what an executor can and cannot legally do. Understanding these limitations is crucial for both executors and beneficiaries to ensure the estate is handled properly.
This article will examine what actions an executor is prohibited from taking and what recourse beneficiaries have if misconduct is suspected.
The Role and Responsibilities of an Executor
An executor is the person named in a will to manage the estate upon the testator’s death (the person who made the will). Their primary responsibility is to follow the instructions in the will and appropriately distribute assets to beneficiaries.
The executor oversees the probate process, from submitting the will to the probate court to wrapping up the estate affairs and closing probate.
Specifically, the main duties of an executor are:
- Filing the will with the probate court to open probate and be appointed executor of the estate
- Preparing an inventory of estate assets and debts
- Using estate funds to pay any outstanding taxes, debts, and expenses
- Selling estate property if required to raise funds
- Distributing specific bequests outlined in the will
- Dividing and distributing the remaining assets to beneficiaries
- Filing any necessary tax returns for the estate
- Providing regular accountings to the probate court and beneficiaries
- Closing the estate when administration is complete
This considerable control over estate assets means the executor has a fiduciary duty to the beneficiaries. This means they must always act in the estate’s and its beneficiaries’ best interests.
Actions an Executor Cannot Legally Take
While executors have substantial powers, there are some specific actions they are prohibited from taking:
Theft and Self-Dealing
One of the biggest offenses an executor can commit is stealing from the estate. This includes:
- Using estate funds for personal purposes
- Selling estate assets to themselves below market value
- Pocketing rental income from estate properties
- Withholding rightful distributions from beneficiaries
Executors are also barred from self-dealing. This means they cannot make transactions that benefit themselves over the estate, like buying estate property for themselves for an unfairly low price.
Acting Against the Will
An executor cannot contradict the terms of the will. They cannot decide to distribute assets differently than the will instructs, even if they believe it would be more equitable. The executor also cannot arbitrarily refuse to carry out certain provisions in the will. They must administer the estate exactly as the will specifies, regardless of personal opinions.
Executors also cannot change or disregard beneficiaries named in the will. They cannot remove beneficiaries who were included, nor can they add new beneficiaries who the testator omitted.
Mismanaging Estate Assets
An executor must manage and maintain estate assets properly. They cannot allow real estate to fall into disrepair or make unwise investment decisions that deplete financial assets. Even if unintentional, gross mismanagement of assets is a breach of fiduciary duty.
Concealing Information from Beneficiaries
Executors must provide beneficiaries with full information about estate administration and assets when requested. Purposefully concealing or refusing to disclose information reasonably available to beneficiaries is misconduct.
Failing in Fiduciary Duty
Sometimes, an executor may breach their fiduciary duty through negligence rather than intentional malice. This can occur if the executor fails to:
- Notify beneficiaries of their interest in the estate
- Properly maintain and manage estate assets like real estate or investments
- Accurately account for estate transactions and inventory
- File tax returns and pay taxes promptly
Failing to perform these fiduciary duties can still constitute misconduct, even if unintentional.
Watching for Warning Signs of Executor Misconduct
Beneficiaries should be alert for any red flags that an executor is not properly fulfilling their obligations.
Some signs include:
- A lack of communication or transparency from the executor
- Significant delays in receiving an inheritance
- Inheritances being withheld or disputed without cause
- The executor using estate property for personal use
- Sale of property below market value
- Lack of regular accountings of estate finances and transactions
If you have concerns about the executor, it is advisable to consult an estate litigation attorney to understand your options. You may petition the probate court to compel the executor to provide an accounting, remove the executor, or surcharge them for any losses they caused the estate.
Protecting Yourself as an Executor
For those named as executors, here are some tips to avoid misconduct allegations:
- Thoroughly document all estate transactions, asset management, and distributions to beneficiaries. Save receipts and notes.
- Avoid even the appearance of self-dealing. Never purchase estate assets for yourself, even if fairly valued.
- Frequently communicate with beneficiaries to avoid misperceptions. Proactively provide updates and accountings.
- Seek guidance from an attorney if you are unsure how to act in the estate’s best interest.
- Decline executor fees to avoid any impression you financially benefited.
- Distribute inheritances as quickly as reasonably possible. Avoid unnecessary delays.
- Do not use estate property for your own benefit. Get consent of beneficiaries for any personal use.
Following these guidelines can help demonstrate you are honorably carrying out the executor role with the estate’s best interest in mind.
Get Personalized Guidance on Executor Duties and Limitations
Serving as an executor is a major responsibility that comes with legal limitations. While executors have considerable power over the estate, they cannot enrich themselves or act against the testator’s wishes.
Beneficiaries should keep an eye out for misconduct red flags. If you believe the executor is acting improperly, consult a probate lawyer to understand how to hold them accountable. With all parties properly informed of executor duties and limitations, the probate process can proceed smoothly and avoid disputes.
If you have questions about choosing an executor or need assistance creating an estate plan, the estate planning attorneys at Stivers Law in Coral Gables can help. They serve clients throughout Florida and carelessly craft customized plans that protect your legacy.