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Can An Executor / Executrix of a Will Take Everything?
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Can An Executor / Executrix of a Will Take Everything?

Some people search for “executive of a will,” but it’s actually “executor of a will.” Nonetheless, the question always remain:

  • Can the Executor of a will access bank accounts
  • Can an executor decide who gets what
  • Can an executor withdraw money from an estate account

So, someone you know has died and left you something in their Will, but the Executor is someone you don’t like because you feel they are greedy and can’t trust them, and you are now wondering whether your inheritance is in jeopardy? 

Yes, dealing with a deceased’s property and money is never easy, especially if you are not familiar with the legal system to ensure that executors fulfill their fiduciary responsibilities.

EXECUTOR OF A WILL

Probate Process: Does it protect the beneficiary?

There is some truth to the horror stories you hear about the Executor of a Will cheating people out of their inheritance. However, the legal system does contain checks and balances to guarantee that executors are held responsible.

What does an Executor of a Will do?

In their capacity as gatekeepers, executors keep an estate asset safe for its heirs, but they are not vested with enough power to hoard assets beyond what the deceased would have preferred. 

We will talk about what an executor, aka an estate trustee, can and cannot do and what a beneficiary can do if they perceive the Executor is going against the Will. 

Who is an executor?

Estate executors are the people who handle the estates of a deceased person if a valid Will was made by the deceased. A testator typically selects the Executor and names the person in their Will. 

What if the Will is invalid or there is no Will? 

If the deceased’s Will is invalid or didn’t leave a Will at all, the person in charge of their estate is called an “administrator,” and the court appoints them.  

Can an executor decide who will get what?

No, an executor has the power to interpret a Will and distribute an estates asset according to the deceased’s wishes as stipulated in the Will, but they cannot decide who will get what or when; that’s already made clear in the Will. Here’s a look at what an executor can and can’t do. 

What an executor can do:

An executor’s job is anything but fantastic. When someone dies, they bear a considerable load. They have to manage the deceased’s estate and have to prepare the funeral, cancel credit cards, collect documents, and recruit attorneys and financial experts to assist them in the administration of the asset in a way that’s in the beneficiaries’ best interest. 

Here is a very brief summary of their primary responsibilities: 

  • Applying for probate to access the property, money, and other assets
  • Manage all estate assets and protect from stealing
  • Interpreting a Will and distributing assets as stated
  • Mediating conflicts between beneficiaries
  • Investing the estate assets

Can the Executor of a Will access bank accounts?

Yes, in their capacity as the people who handle deceased’s estates and execute their Wills, executors can move funds from a deceased bank account to an estate account and take from it to pay estate debts, taxes, etc., but not as their own. After all, the assets don’t belong to them but the estates they handle.  

What if I’m the Sole Beneficiary and Executor?

Even if the Executor is also a named beneficiary, they cannot withdraw cash directly from the estate account. The Executor has to wait just like other beneficiaries until the estate business is closed and funds are distributed upon court approval of a petition. 

Can an estate executor sell its properties?

Yes, executors can sell an estate’s property but with some limitations. First of all, it depends upon the state. In some states, executors can sell estate properties with or without approval from the court or beneficiaries but should always notify the latter. The second thing is they are only allowed to sell the properties after everything has been appraised and must not bring in less than a certain percentage of the appraised value (90% in California). 

However, cases involving real estate properties may require approval from the court and beneficiaries. Always check your state laws and consult with your estate attorney.

What an executor can’t do:

Now you’ve seen the extent of the executors’ powers, but while it’s their duty to interpret a Will, they can’t do the following: 

  • Pass their responsibilities to others unless the Will allows it 
  • Profit from their duties as Executor (they can get a fee, though, but as stated in the Will) 
  • Prioritize their own interests over the estate’s rights 
  • Invest estate assets recklessly. 
  • Purchase assets from an estate without beneficiaries’ permission 
  • Modifying life insurance policies 
  • Modify a Will without applying for a variation of trust

Can the Executor of a Will take everything?

After reading the above information, it is clear the Executor cannot take everything!   

Just because they are the Executor by default, an executor of an estate cannot simply grab everything. They must administer assets according to the terms of the Will, not altering them; means they cannot disregard the terms of the Will and seize everything from themselves. 

Now, suppose the Executor is also the sole beneficiary, according to the Will. In that case, all estate assets are distributed to the Executor once all obligations and taxes have been paid.

Who can be an executor?

It depends on your local state laws; for example, anyone over 18 years old can be appointed Executor in California. However, in most cases, executors come from the family or the deceased close friends. There is also the chance that it may be a disinterested third party if the deceased wanted to reduce friction.

What happens in the case of a confusing Will?

One of the critical things to keep in mind about an executor’s duties is that they have a fiduciary responsibility to the estate. In other words, they must act in accordance with the terms of the Will, not their self-interest. 

The only tricky situation is when the wishes of the deceased, as stipulated in the Will, are not clear, and the trustee has the power to interpret these grey areas. If you are not satisfied with the Executor’s interpretations, you can always seek legal advice. You can take the matter to court for further interpretation. 

What if an estate executor fails to distribute the inheritance? 

Can an Executor of a will deny a beneficiary their money? The Executor is granted extensive authority to protect and maintain assets. Some executors may take this to believe their powers are unrestricted and refuse to distribute recipients’ inheritance. 

However, based on the facts in this article, that is unlawful, and you could force them to distribute. You could hire an Estate Litigation attorney to file a Petition to compel them to appear in court. The Executor must convince the judge that their acts were justified. If they are unable to do so, the judge may order that the distributions be made.

Can the estate executor be removed?

Yes, under certain circumstances, it’s possible to have an estate’s Executor removed. 

For example, in California, State Probate Code 8502 stipulates that an executor can be removed if: 

  • They have squandered, mismanaged, stolen, or defrauded the estate or plan to do so. 
  • They do not meet the appointment criteria or proof of incapacitation. 
  • Neglecting duties or wrongfully ignoring the estate for an extended period. 
  • To protect the estate or persons interested.
  • A state statute also allows removal for another reason.
  • They can’t provide a full accounting of estate assets: fail to comply with requests for Notice of probate court application, Review of the Will, and Documented account of the estate.

What to ask yourself when considering legal action against an Executor of a Will

If you have sought legal advice, reviewed the estate documents, and still can’t resolve the issue with the Executor, there are some legislative options you can pursue. However, before you take legal action, here are some questions to ask yourself: 

  • Have I tried everything possible to recover what’s mine without involving the law? 
  • Do I have records of my communications with the Executor? 
  • Can I prove that the Executor is not fulfilling their responsibilities to the estate? 
  • Would my inheritance be able to offset the costs of hiring a lawyer to get the Executor booted? 
  • Do other beneficiaries share the same feelings, and can they join me in my lawsuit? 

If an executor’s abilities are in question, the court will examine the matter to determine whether they should replace them and who would be the best Executor. Interested parties can participate in the hearing, including beneficiaries, heirs, spouses, creditors, and potential executors. When the judge agrees there are grounds for removal, the Executor can be removed. 

Hopefully, this is useful in helping you know what to do if you have concerns about an executor of your inheritance. If you want help holding an executor accountable, contact us. Let our probate litigation attorney walk you through this complicated process. We also help clients with estate planning, Wills and Trusts, and power of attorney. Indeed, feel free to call or visit our office for a consultation.

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What is Probate

To understand what probate litigation is, one first has to understand what is “probate.” When a loved one dies, i.e., the decedent leaves behind their property, jewelry, bank accounts, etc., i.e., the decedent’s estate. The decedent’s estate should be transferred to family members (beneficiaries) and heirs after all taxes, debts, etc. are paid out.

Choosing the Right Probate Law firm is Paramount

When you are looking for an Orange County Probate Attorney. Hess-Verdon & Associates is one of the most reliable and most sophisticated trusts and estate law firm in the state of California at both the trial and appellate levels. 

Our probate litigation team has spent years acquiring extensive experience in trial preparation, strategy, and trial presentation to help you with your specific case.

We welcome the opportunity to discuss your needs, our qualifications, staffing approaches, and rate structures with a view toward the successful resolution of Estate, Trust, and Probate-related problems.