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What an Executor Can and Cannot Do

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By: HeirSearch.

At HeirSearch™, we work alongside estate professionals to locate missing heirs and establish heirship. These professionals may function as the executor of a will, or the attorney who represents the executor of a will. Since our inception in 1967, we’ve achieved a 97% success rate across tens of thousands of heir searches worldwide.

We know that the trust and probate realm can be one of the most puzzling aspects of the law. Many questions we field relate to the executor of a will’s role. More specifically, these questions concern what an executor of a will can and cannot do.

The role of executor may carry a different title depending on what state or region you are located in. For example, “administrator” or “personal representative” can be used synonymously with “executor” and these titles are responsible for the same essential elements of dealing with an estate.

While an executor is primarily responsible for the distribution of an estate’s assets, there are legal limits to this role. These limits ensure executors act lawfully and in good faith during probate matters.

What is the Executor’s Role?

The estate executor’s fiduciary responsibility is to distribute assets in accordance with the will and in compliance with the law of the region in which they are operating.

Due to the complexity of some wills and family circumstances, no two executors will perform precisely the same duties. However, they are all equally bound by what they can and cannot do.

What an Executor Can Do

When someone accepts the role of executor, he or she is responsible for carrying out the will and estate of the decedent.

The responsibilities of an executor of an estate include (but are not limited to):

  • Provide notice to heirs and interested parties — Formally notify family members and other parties listed in the will that they may be heirs to an estate.
  • Close the estate — Tying up loose ends left by the deceased, including paying taxes, debts, and any other related expenses owed.
  • Open probate with the court — If someone challenges the will or it ends up in probate court, the executor is responsible for helping to validate it.
  • Identify and distribute the deceased’s assets — This involves arranging for and supervising the lawful distribution of the decedent’s estate.
  • Administration — Manage and maintain paperwork, working files, and other administrative aspects of the estate.

What an Executor Cannot Do

While an executor is responsible for ensuring the will is carried out according to the decedent’s wishes, they must also abide by several legal restrictions that protect all parties involved.

A will’s executor cannot:

  • Alter a will’s beneficiaries — The executor is not permitted to remove parties from or add parties to a will.
  • Prevent beneficiaries from contesting a will — The executor has no legal recourse to block beneficiaries named in the will from contesting it.
  • Sign the will on behalf of the deceased — If a person writes a will but passes away without signing it, this is equivalent to them having no will at all. An executor cannot sign the will on behalf of someone who has died, and they cannot begin executing the will while the testator is still alive.
  • Delay or withhold distribution without cause — An executor may only delay asset distribution to beneficiaries if it is required to close out the estate.
    • If the estate’s debts exceed its assets, the heirs won’t receive an inheritance.
    • An executor cannot steal from the estate, refuse to communicate with beneficiaries, or needlessly delay payments. Any of these are grounds for removal by a judge.

Fortunately, most executors abide by the law and act in good faith. If beneficiaries feel at any point that an executor is not performing their duties lawfully, they may bring the case before a judge and request that the executor be removed. If the evidence presented warrants the executor’s removal, the court is obliged to either assign a new executor or assume the executor’s duties.

Bonus: Can an Executor Also be a Beneficiary?

Yes. In fact, it is common for the executor to be a beneficiary. Consider when a spouse passes away; in these cases, the living spouse is frequently named executor. It is also common for children to be named both beneficiaries and executors of wills/trustees of family trusts.

Do You Need Help Establishing Heirship?

At HeirSearch, we’ve seen it all. If you are the executor of a will, or an attorney representing an executor of a will, and need to establish heirship to satisfy the court, HeirSearch can help. We offer no-cost, no-obligation consultations, even if you are not planning to start a search right away.

Feel free to reach out with any questions you might have — we look forward to connecting!

Phone: +1 (800)-663-2255
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As the industry’s leading forensic genealogy experts and heir finders, We Find Missing Heirs a Better Way®. We are equipped to help with even the most complex probate cases, which may span multiple genealogical connections and geographies.

 

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