To what extent can an executor go what does an executor do and what an executor cannot do, one must have a basic idea to protect the estate. The heirs take over the estate when a person dies, and distributing the estate to heirs is not as probate. It is a lengthy process, and it ensures that the heirs get proper contributions in inheritance. An executor is hired for the tasks involved in getting the estate through a probate process. However, the executor does not have full access; they have limitations. Appointing an executor can create a last will is a difficult step. An executor will be responsible for announcing the deceased’s wishes and ensuring that the estate is properly managed.
If you are an executor or have recently lost someone, keep reading to get an idea of what an executor cannot do and what are the limitations of an executor.
The person creating the last will select the executor. The person drafting the will is known as a testator. The testator has the full authority to assign the responsibilities to an individual to serve as the executor after their passing though there is a separate heavy toll on the executor to fulfil his duties. Sometimes, the executor is also called a “personal representative.”
Choosing an executor is crucial, as the chosen individual will be responsible for carrying out the deceased’s wishes. The executor will also manage the estate during the probate process. The role of an executor comes with many responsibilities, including gathering assets, listing assets and personal belongings, and paying debts and taxes.
Commonly, an executor is a family member, a close friend, or a trusted advisor. However, some hire professional executors or experienced attorneys to administer the estate and for an efficient probate process. Nonetheless, discussing the estate matter beforehand with the executor is important. If the executor is unable or unwilling to serve, the court appoints a personal representative.
What an executor cannot do?
There are certain limitations on an executor when it comes to the deceased person’s will. Let’s explore what an executor cannot do.
1. Make decision against the will:
An executor must follow the wishes of the deceased and the instructions given by the law. The assets must be distributed among the beneficiaries and heirs per the will.
In any case, the executor cannot make changes in the will or make decisions while distributing the estate’s assets. An executor is liable to carry out the wishes dictated in the will.
2. Make alterations to the will:
Just like an executor cannot sign a will, the same way the executors do not have the authority to modify, change or alter the contents of the will. It must go through a proper legal process if anything needs to be updated in the will.
In case of any change, a new one will be created altogether, under the supervision of the authorities. An executor must faithfully execute the wishes of the deceased.
3. Engage in self-dealing:
An executor is appointed based on trust and transparency. Therefore, it is the due responsibility of an executor to go through a proper legal process and distribute the assets as per the will.
The executor cannot under any circumstance use their position for personal gain. An executor cannot engage in self-dealing. Using estate funds for personal use or selling any asset at a discount is strictly prohibited.
4. Ignoring the taxes and debts:
When a person dies, an executor is responsible for dealing with the estate matters. The probate process also includes clearing taxes, debts, or other personal expenses.
Therefore, the executor must clear the outstanding debts and taxes before distributing the assets to the beneficiaries. Ignoring taxes and debts could result in legal consequences.
5. Respecting the rights of a beneficiary:
Under any condition, an executor cannot withhold the beneficiary’s rights. The legal heirs and beneficiaries have the right to inherit as instructed in the will.
The executor cannot deny the rights of the share; if there are any conflicts between the beneficiaries, it is the executor’s responsibility to address it without any biases and by the law.
6. Withholding the information from the beneficiaries:
Executors must remain transparent with the beneficiaries. They have the legal right to know everything about the value of the assets, the payment of the debts, and the probate process.
If the executor withholds any information from the beneficiary, they hold the legal right to challenge the court for the removal of the executor.
7. Act without accountability:
An executor is responsible for maintaining the data of financial records and an executor can take help from a financial consultant in these matters and transactions related to the estate. They must provide the account estate assets, liabilities, and expenses list.
An executor can only act with accountability; failing to maintain records or provide misleading information could lead to legal consequences.
8. Delay the probate process:
An executor must go through the probate process timely; if there is a delay in the proceedings, a proper reason must be filed. Moreover, the progress of the pro. bate must be shared with all the legal heirs and beneficiaries.
The executor cannot delay the process without reason; the assets and financial data lists must be presented on time.
What is the probate process?
The probate process is a legal procedure that happens after a person dies. This process validates and administers the last will and testament to settle their estate (if there is no intestate). The probate process is supervised by the court and ensures that the assets are distributed as per the wishes of the deceased or by the law.
The main objective of a probate process is to:
- Prove the authenticity of the will. The court will examine the will to make sure that it meets the legal criteria.
- If there is no name of the executor in the will, the court will appoint an executor to administer the estate.
- The executor will make a list of all the belongings and assets of the deceased.
- The executor will clear all the outstanding debts and taxes owed by the deceased. This also includes funeral expenses and estate taxes.
- Once the taxes and debts are paid, the remaining assets will be distributed to the beneficiaries named in the will; if there is no name, the will will be distributed according to the law.
The probate process can be time-consuming as it involves a proper chain of steps, and it also depends upon the jurisdiction and complexity of the steps. Following are some common steps of a probate process:
- The probate process starts with the filing of a petition in the probate court of the country. The country where the deceased resided at the time of passing away.
- Notice to the beneficiaries will be routed and provided to all the heirs and beneficiaries.
- Once the notice is received by all the heirs and beneficiaries, the court will hold a hearing to validate the will.
- Once the list of the inventory of the deceased is submitted to the court, the executor will settle the valid debts claimed against the estate.
- Once all the expenses and debts are paid, the remaining assets will be distributed to the beneficiaries.
At times, it takes several months for a probate process. It may involve legal and administrative fees as well. However, in some cases, probate is avoided, and a simplified process is done through estate planning and creating living trusts. Understanding the probate laws is essential to minimize the process’s complexities.
Appointing an executor is a crucial decision. However, acting as an executor and understanding the limitations is an even bigger change. The executor must follow the instructions and wishes of the deceased and sometimes executors need expert guidance. Moreover, the executor must align with the proceedings of the law. Knowing the limitations of an executor can help you make an informed choice, and you will be at peace knowing that the estate matters are handled efficiently and legally.
The person creating the will, commonly known as the testator, chooses the executor. In common cases, an executor is a family friend, a legal advisor, or anyone who knows about the affairs of the estate.
Yes, an executor can be removed from the responsibilities in some cases. If the beneficiaries provide valid reasons to the court, the court has the authority to remove the executor. The court will then provide the estate with another executor or a legal representative.
The executor must act as per the wishes of the deceased. It has the right to manage and distribute the assets as per the instructions of the will. The executor also holds the authority to clear and settle the taxes and debts before distributing the assets.
In such cases, at times, there is another name suggested in the will. However, if there is no other option in the will, the court appoints a legal representative to handle and administer the estate.
Meet Doug, a seasoned financial planner with over 35 years of experience in providing trusted advice and planning for retirement, estates, income tax, and investments. As a Chartered Accountant (CPA CA), Certified Estate Advisor (CEA), Certified Financial Planner (CFP®), and Elder Planning Counsellor (EPC), Doug has the expertise and knowledge to guide and support executors through the estate processing journey.