Is an executor withholding assets or making unauthorized distributions? Take legal action to protect your inheritance now.
Suppose there is ambiguous language that could be interpreted in multiple ways. One interpretation would result in you inheriting a house with your siblings. The other would result in only you inheriting the house. Can an executor decide who gets what in this scenario?
Or suppose a will directs for an income-producing rental property to be distributed in equal shares to you and your siblings. The executor informs you that dividing the property in this way would not be feasible since the rental units are not identical, so he offers to purchase the property himself and distribute the proceeds from the sale to you and your siblings. Can an executor transfer property to himself?
Or suppose estate administration began over a year ago, but the executor is not communicating with beneficiaries about its progress. Beneficiaries have sent numerous requests to the executor for information, but to no avail. They fear the executor may have taken off with the assets. Can the executor of a will take everything and get away with it?
Or what if the decedent never created a will? Can an executor decide who gets what without a will? How is an intestate estate handled?
Losing a loved one is overwhelming, and it’s only natural to worry about what will happen to their assets. You desire to see their final wishes honored — and just as importantly, you desire to receive the inheritance they intended for you. While it’s the executor’s job to make that happen, what if you’re not sure you can trust them?
It’s natural to feel uneasy about someone else managing your loved one’s estate. However, executors are bound to certain rules designed to protect estate beneficiaries. While some executors do misuse the power they’ve been granted, the penalties for executor misconduct are often severe enough to discourage wrongdoing.
Still, it’s important to understand what an executor cannot do — and what decisions are within an executor’s authority to make — to hold them accountable and prevent conflicts with the beneficiaries from hindering the administration process.
A personal representative (i.e., executor or administrator) usually does not have the power to decide who gets what, so if an executor is withholding money from beneficiaries without explanation, making unauthorized distributions or otherwise overstepping their authority, it’s critical to consult an experienced probate attorney, who can investigate the matter, protect your inheritance and, if necessary, take legal action against the executor.
“The sooner improper behavior is detected, the simpler it typically is to prevent irreversible harm to an estate,” says Roee Kaufman, a partner at Keystone.
How Much Power Does an Executor Have to Decide Who Gets What?
Personal representatives rarely, if ever, have the right to decide who gets what from an estate.
On the one hand, executors need certain powers to effectively administer decedents’ estates. On the other, their powers must be limited to curb the potential for misconduct. For beneficiaries, it can be confusing to tell where an executor’s powers begin and where they end.
If an executor is claiming they have the authority to decide who gets what from an estate, it would be unwise to take their word for it since this is almost never the case. The better option is to have a knowledgeable probate attorney examine the will and the situation more broadly to determine how much power, if any, the executor actually has over estate distributions.
When can an executor decide who gets what? Are there any scenarios in which this is possible? Learn more about an executor’s specific powers – particularly when it comes to managing estate assets — from the sections that follow.
Does the Executor Have to Follow the Will?
If a will has been authenticated by the court, the executor must follow it to the letter.
However, there is a significant exception: If a dispute over the will arises that leads to the will being invalidated or reformed by the court, the executor cannot rely on the original will submitted to probate. What the executor must follow instead — or whether they remain the executor at all — depends on whether there is another valid will. If no valid will exists, the court will determine how to proceed.
For example, a beneficiary may contest a will claiming undue influence if its terms contradict the decedent’s known final wishes. This is common when the will was amended shortly before death, especially if the decedent was mentally incapacitated, and only a new beneficiary, such as a romantic partner, was present.
In such cases, the executor may defend the will during the contest. However, they must comply with the court’s final ruling or any settlement reached. In other words, the executor cannot unilaterally decide who gets what if the will is invalidated.
If a contest succeeds, leading to a will being overturned, the court may appoint a new personal representative. If no valid will exists, the estate is considered intestate, and the court typically will appoint an administrator to manage it.
Another common challenge executors face relates to ambiguous language in a will. Suppose a will states, “I give my residence and bank accounts to my ex-spouse,” but the decedent had multiple ex-spouses.
In this scenario, the executor may reasonably believe the decedent intended the most recent ex-spouse with whom they shared a minor child to inherit. However, an executor interpreting ambiguous language in a will without court guidance may be regarded by the beneficiaries as a breach of their duty of impartiality.
To prevent disputes, the executor should try to reach a consensus among beneficiaries regarding the ambiguous term(s). If an agreement isn’t possible, the executor can file a Petition for Instructions with the probate court. This petition requests for the court to interpret the ambiguous term(s) and, if necessary, reform the will to clarify the decedent’s true wishes.
Can an Executor Decide Who Gets What Without a Will?
The executor cannot decide who gets what without a will — in fact, without a will, there typically won’t be an executor; there will be an estate administrator instead.
How does one become administrator of an estate? Unlike executors, who typically are nominated in a will and later formally appointed by the court, administrators are selected based on the order of priority set by California Probate Code section 8461.
While the administrator won’t be bound by the terms of a will, they will be bound by intestate succession laws, which are rigid and leave little room for interpretation.
Intestate estates don’t have beneficiaries; they have heirs. Generally, heirs consist of the decedent’s closest family members, such as their surviving spouse and children. If the decedent isn’t survived by a spouse or children, their grandchildren, parents, siblings or nieces and nephews may inherit instead.
Can Executors Transfer Property to Themselves?
Whether an executor can transfer property to themselves depends on the circumstances of the situation.
Specifically, executors may have the authority to transfer property to themselves if:
- They are a beneficiary named in the decedent’s will to receive the property — or a portion of it;
- The will is invalidated, they are appointed administrator, and they stand to inherit the property as an heir under intestate succession laws; or
- They purchase the property from the estate.
When an executor is also a beneficiary — which is often the case — they are not only justified in transferring property to themselves but may have a duty to do so. However, this only applies to property they are entitled to receive under the will or intestate succession.
When can an executor sell property to himself? It’s important to note that if the executor intends to purchase property from an estate, this can present a conflict of interest. In such cases, the executor must tread carefully and seek legal advice before completing the transaction.
Executors can protect themselves by paying at least fair market value for the property (or beating the highest offer). In order to finalize such a sale, they must also obtain the unanimous consent from all the beneficiaries or secure court approval.
Does the Executor of a Will Have Final Say?
While the executor plays a vital role in managing and distributing an estate, they do not have the final say over who gets what. Their duty is to carry out the instructions in the will exactly as written.
Executors must always remember their fiduciary duty to act in the best interests of the estate and its beneficiaries. If circumstances make it impossible for the executor to follow the will as written, they should consult a probate attorney or seek guidance from the court. Ultimately, the court has the authority to override an executor’s decisions if they conflict with the decedent’s wishes or the law.
To put it simply, while the executor manages the estate’s affairs, the final decisions surrounding who gets what are governed by the will itself (or intestate succession laws, if no valid will exists) and supervised by the probate court, not the executor.
Can the Executor of a Will Take Everything?
The only circumstance under which an executor could legally take everything is if they are the sole beneficiary of an estate. However, even then, before taking any distributions, they must pay the decedent’s debts and other liabilities.
In all other scenarios, an executor “taking everything” would suggest misconduct. In most cases, the issue is usually subtler — for example, an executor quietly siphoning estate funds for personal use over time.
Regardless of whether the misconduct seems minor or severe, it should always be investigated by a qualified attorney.
Can an Executor Change a Will?
An executor cannot change a will under any circumstance. Their job is to carry out a will’s terms as written.
Say the executor discovers that a beneficiary financially exploited the decedent when they were still living. Can an executor remove a beneficiary in this scenario? The answer is no. If a petition is filed to address this issue, and the claim is successful, the court may issue an order for the beneficiary to be disinherited, but the executor cannot make such a decision themselves. They, however, must abide by any orders issued by the court.
There is a simple explanation for why changing a will after death generally isn’t possible. A will automatically becomes irrevocable — meaning the will cannot be revoked or amended — once the will creator (called the testator) loses mental capacity or dies.
Can an Executor Withhold Money From a Beneficiary?
It generally is not permitted for an executor to withhold money from a beneficiary for any reason — even temporarily — if an estate is settled, and the court has issued an order for final distribution.
For an estate to be considered settled, all debts should be satisfied, probate fees paid and estate disputes resolved.
So, how long does the executor have to pay the beneficiaries? Although the law does not impose a strict deadline, the executor should aim to make final distributions as promptly as possible. In most cases, this means within a few weeks to a month after the court’s order is issued — though more complex distributions could take longer to complete.
That said, there are a couple scenarios in which an executor may have the authority to withhold a distribution.
For example, although this is rare, a will could instruct the executor to temporarily withhold a distribution from a beneficiary until they meet a condition or reach a milestone (e.g., the beneficiary completes college or turns 24), in which case doing so would likely be permitted.
An executor may also withhold a minor’s inheritance — not out of choice, but because the law prohibits minors from directly inheriting assets. In this instance, the executor would place the minor’s distribution in a trust or custodial account, or provide it to the minor’s legal guardian (if they have one) to hold for them until they turn 18 and can legally claim it.
If an estate carries substantial debt, beneficiaries may receive a reduced inheritance or, in some cases, nothing at all. This is because executors typically must satisfy all valid debts before distributing assets. However, this is not the same as an executor intentionally withholding an inheritance.
How Much Can an Executor Pay Themselves?
Executors are generally entitled to compensation for the time and effort they dedicate to administering an estate. However, they can only pay themselves after the court has reviewed and approved their fees.
Unlike trustees, executors cannot decide their own compensation. Under California law — specifically Probate Code section 10810 — executor fees are set according to the value of the estate and are meant to cover only the ordinary tasks involved in estate administration. If the executor must take on extraordinary duties, such as selling or leasing real property or engaging in litigation on behalf of the estate, the court may authorize additional payment. Still, higher compensation is not automatic or guaranteed and must be approved.
Can an Executor Use a Deceased Person’s Bank Account?
An executor is authorized to use funds from a deceased person’s bank account to pay legitimate estate expenses — such as administrative costs, outstanding debts and taxes, and distributions to beneficiaries in accordance with the will. What they cannot do is use those funds for personal purchases or any purpose unrelated to the estate.
In practice, an executor typically won’t be withdrawing cash directly from a decedent’s account. If the account is an estate asset and has no valid beneficiary designation, the executor will claim it on behalf of the estate and transfer the funds into a dedicated estate account.
This separate estate account is used exclusively for estate-related transactions throughout the administration process, ensuring transparency and proper record-keeping.
How to Handle an Executor’s Abuse of Power
An executor’s primary duty is to act in the best interests of the beneficiaries — not to serve their own agenda. If they disregard the will’s terms to unilaterally decide who gets what from an estate, beneficiaries should take immediate action to address this misconduct.
1. Inspect Financial Documents for Irregularities and Questionable Transactions
Over the course of estate administration, you will likely receive important financial and legal documents from the executor — such as the will, estate inventory and appraisal, periodic accountings and the petition for final distribution with the final accounting. These records can offer valuable insight into the executor’s activities and may reveal signs of misconduct.
Executor misconduct is not always obvious. Most executors won’t blatantly steal from an estate. Instead, irregularities are often subtle and hidden in the paperwork. Reviewing these documents carefully — or better yet, having your attorney inspect them — can help uncover inconsistencies, missing assets or suspicious transactions that suggest wrongdoing.
An experienced probate attorney can identify red flags you might overlook. If something appears suspicious, it may indicate the executor is failing to meet their fiduciary duties.
2. Communicate with the Executor
Depending on the severity of the alleged misconduct, it may be worth addressing your concerns directly with the executor first. Whenever possible, communicate in writing to create a clear paper trail — this can be invaluable if you later need to take legal action.
In some cases, what appears to be misconduct is simply an oversight or mistake. If the executor can correct the error and restore the estate without significant hardship, litigation may not be necessary. However, if they refuse to remedy the issue or ignore your requests altogether, legal action may be the only option.
3. Consult a Fiduciary Misconduct Attorney
If the executor is uncooperative, promptly consult an experienced fiduciary misconduct attorney. They can advise you on how to force the executor to fulfill their duties and develop a legal strategy if softer approaches — such as direct communication or a demand letter — fail to produce results.
For example, if the executor simply declines to provide requested information about an estate’s debts, your attorney might recommend filing a petition to compel disclosure. If the misconduct is more serious — such as theft or concealing assets — stronger remedies like removal or a surcharge may be appropriate.
It’s also worth discussing settlement options with your attorney. Resolving the matter without a trial can save time and money and, in some cases, lead to a more favorable outcome than litigation.
4. Take Legal Action Against the Executor
Once you and your attorney have decided the specific claims you are making against the executor, the next step is to prepare and file your petition. Your attorney will ensure it is detailed, outlining the suspected wrongdoing, the evidence supporting your claims and the legal remedies you are seeking.
In some cases, a well-crafted petition alone is enough to prompt a settlement. If not, you may need to proceed with discovery or litigation to obtain results.
Beneficiaries can often seek to recover attorney’s fees and costs if they prevail at trial. However, since most cases settle before reaching trial, you should be prepared to cover these costs upfront.
Related Executor and Administrator FAQs
Still unsure about the powers and limitations of a personal representative? The frequently asked questions below can help provide additional clarity.
If you’re facing a specific legal issue, it’s always best to get advice tailored to your situation. Contact our firm today to speak with our experienced legal team.
What happens if someone dies without a will?
When someone dies without a will, their estate is distributed according to intestate succession laws rather than a will’s instructions. In addition, the decedent’s closest surviving relatives (known as heirs-at-law or direct heirs) inherit the estate instead of named beneficiaries.
Intestate estates are administered by an administrator instead of an executor. While administrators have duties similar to executors, they are appointed based on a statutory order of priority, not through nomination. However, the court always holds the ultimate authority to appoint the personal representative, whether that person is an executor or administrator.
It’s also important to remember that, like estates with a will, intestate estates must go through the probate process.
Can an administrator of an estate take everything?
No, it usually isn’t legal for an estate administrator to take everything in an estate. Although an administrator may qualify as an heir, they only have the power to take the specific share of the estate they are entitled to under intestate succession laws (which are found in Probate Code sections 6400 – 6455), and only after the probate process is complete.
Suppose someone dies intestate, leaving behind only a spouse and siblings. In this case, the spouse would be given priority to serve as administrator and receive 100% of the community property, but they would only receive 50% of the decedent’s separate property, with the remaining 50% going to the decedent’s siblings. In other words, even if a spouse were appointed administrator and is the decedent’s closest surviving heir, they still may not be entitled to take everything.
Who can be executor?
In California, any mentally competent adult generally qualifies to serve as executor. It often is necessary that they be a resident of the U.S., but if a nominee is specifically named in the will, they may be able to bypass this requirement.
In short, there are not many restrictions imposed on who can be executor in California.
Is an executor required to account?
Yes, an executor is typically required to produce an accounting at least once per year for every year an estate remains open. Additionally, the executor must file a final account and a petition for final distribution once the estate is ready to be closed.
Does an executor have to show accounting to beneficiaries? In most cases, yes. Beneficiaries are the primary reason executors must provide regular accountings. Without access to this financial information, beneficiaries cannot protect their rights or hold the executor accountable if they harm the estate.
While beneficiaries can waive their right to receive an accounting, doing so is usually unwise — especially if the executor has proven untrustworthy or if the estate involves complex assets.
Can an executor be removed?
Yes, an executor can be removed either through a petition by interested parties or by the court’s own motion. However, valid grounds for removal of the executor, such as suspected misappropriation of assets or mismanagement of the estate, must be present.
In short, executors are rarely removed without cause — they must be actively harming the estate or obstructing the administration process.
If you are considering removing an executor, it’s important to work with an experienced probate attorney, who can help build a strong case and guide you toward the outcome you want.
Is an executor misusing their power?
If an executor has taken it upon themselves to decide who gets what — or is overstepping their authority in general — it’s crucial to consult a probate attorney as soon as possible.
When uncooperative or unethical executors are permitted to proceed with their misdeeds unfettered, they can cause serious harm to the estate, as well as delay when beneficiaries receive their inheritances.
The attorneys at Keystone are experienced in holding executors accountable for their misconduct. Call our firm to discover how we can help.
