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The Complete Guide: What an Executor Cannot Do in Estate Planning

By The HomeGo Team On 2020-01-09

An executor is a person who steps in to help administer the estate of a recently deceased person. It’s the job of the executor to ensure that others follow the wishes of the deceased individual.

Everyone who creates a will has the right to choose an executor. If someone has a will but dies without naming an executor, the court will step in to appoint one. Let’s take a closer look at what an executor can and cannot do during probate.

What Power Does an Executor of a Will Have?

Due to the potential complexity of some wills and various family situations, no two executors perform precisely the same duties. However, most do share the following responsibilities:

  • If someone challenges the will or it ends up in probate court, the executor helps to validate it.
  • Arranges for and supervises the distribution of the testator’s assets and property.
  • If applicable, determine which beneficiaries inherit real estate according to the will.
  • Closeout the estate of the deceased by paying taxes, debts, and any other related expenses.

When someone accepts the role of executor, he or she makes most decisions regarding the will and estate of the deceased. This is true even when the deceased didn’t express all wishes clearly in his or her will.

What an Executor Cannot Do

Although an executor has some leeway when the testator didn’t make all issues clear enough, this person must also abide by several legal restrictions. For example, the executor can’t remove some people from the will or add others because this isn’t his or her decision to make.

Additionally, the executor has no legal recourse to prevent beneficiaries named in the will from contesting it.

If a person creates a will but dies without signing it, the law views this the same as not making a will at all. The executor can’t sign the will on behalf of someone who has already died. This person also can’t start executing the will while the testator is still alive.

Fortunately, most people take their role as executor seriously and abide by all rules. If the beneficiaries feel at any point that the executor is not following performing their duties correctly, they can bring the case before a judge and request that he or she remove the executor. The court will either assign a new executor or take over the duties of the person it removed.

Another common question that people have in this situation is “Can an executor withhold money from a beneficiary?” Unfortunately, the answer to this question isn’t a straightforward yes or no. An executor can delay payments to beneficiaries to pay taxes and debts on the estate.

If there’s nothing left after that or the liabilities of the estate exceed the assets, the beneficiaries won’t receive an inheritance. However, an executor can’t steal from the estate, refuse to communicate with beneficiaries, or needlessly delay payments. Any of these situations could be grounds for removal by a judge.

Can an Executor Sell Property to Himself?

If the recently deceased person didn’t create a will or the remaining family members can’t find one, it may be possible for an executor to buy shares of property from other beneficiaries rather than sell the home of the deceased. The executor would also be a beneficiary in this case.

This scenario is common among adult siblings when one wants to remain in the family home and the others prefer to cash out their portion of the home’s value instead. This would reduce the inheritance paid to the executor and beneficiary according to his or her share of the parents’ home.

When no beneficiaries want to reside in the inherited piece of real estate, the executor must list the property for sale at fair market value. Selling the home or the assets inside of it for less than this can result in the removal of the executor and halting of the real estate transaction.

Can an Executor Sell Property Without All Beneficiaries Approving?

The executor always has the obligation to act in the best interests of beneficiaries. However, executors can also petition the court if they feel that a beneficiary is attempting to stall the deal indefinitely or is otherwise acting in an unreasonable manner. Additionally, the executor can decide to proceed with a sale if the will of the testator doesn’t provide specific instructions.

Looking to Sell an Inherited Property?

Probate is a long and complicated process for anyone. It can be especially challenging when grief is raw due to the recent death of a family member. If you have recently inherited a property you would like to sell, HomeGo can help by providing a same day cash offer.

Should you accept the offer, we can close the deal in as little as seven days. This allows everyone to move forward without the added worry about what to do with the inherited property. HomeGo works with properties in all types of conditions so long as we can ultimately sell it for a profit. Please contact us today to learn more.

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