The guiding principle is simple: an executor of an estate must never act against the collective best interests of the beneficiaries.
The role of an executor is that of a fiduciary, meaning they are legally obligated to represent and protect the interests of the beneficiaries of an estate. If an executor prioritizes their own interests, favors certain beneficiaries over others, or benefits outside parties to the beneficiaries’ detriment, it constitutes executor misconduct. Such misconduct could not only lead to their suspension or removal but also make them personally liable for any financial harm they cause.
Say an executor withholds critical information from beneficiaries. Without transparency, beneficiaries cannot ensure the executor is fulfilling their duties diligently and ethically — or even at all. For this reason, keeping beneficiaries in the dark is something an executor generally cannot do.
A common mistake beneficiaries make is waiting passively for their inheritance. Executors, like anyone, can make mistakes — sometimes unintentionally, sometimes in good faith. However, even honest errors can harm the estate and, by extension, beneficiaries’ inheritances. This is why understanding the bounds of an executor’s authority is crucial.
If you suspect an executor is acting against the beneficiaries’ best interests, don’t wait. Contact a skilled probate attorney immediately to stop the misconduct and prevent further harm to the estate.
How Much Power Does an Executor Have?
How much power an executor has depends on the level of authority they’ve been granted by the court. An executor can either have limited authority or full authority.
California Probate Code section 10501 lays out in detail the actions requiring court supervision for all executors (regardless of the level of authority granted) and the actions requiring court supervision for executors with limited authority.
Actions requiring court supervisions for all executors:
(1) Allowance of the personal representative’s compensation.
(2) Allowance of compensation of the attorney for the personal representative.
(3) Settlement of accounts.
(4) Subject to Section 10520, preliminary and final distributions and discharge.
(5) Sale of property of the estate to the personal representative or to the attorney for the personal representative.
(6) Exchange of property of the estate for property of the personal representative or for property of the attorney for the personal representative.
(7) Grant of an option to purchase property of the estate to the personal representative or to the attorney for the personal representative.
(8) Allowance, payment, or compromise of a claim of the personal representative, or the attorney for the personal representative, against the estate.
(9) Compromise or settlement of a claim, action, or proceeding by the estate against the personal representative or against the attorney for the personal representative.
(10) Extension, renewal, or modification of the terms of a debt or other obligation of the personal representative, or the attorney for the personal representative, owing to or in favor of the decedent or the estate.
Additional actions requiring court supervision for executors with limited authority:
(1) Sale of real property.
(2) Exchange of real property.
(3) Grant of an option to purchase real property.
(4) Borrowing money with the loan secured by an encumbrance upon real property.
It’s crucial you take the time to understand what an executor’s level of authority requires. Even an executor with full authority, for example, must serve beneficiaries with a notice of proposed action prior to taking certain actions, such as selling the decedent’s real property, so the beneficiaries have the opportunity to object to it if they so wish.
In the following sections, we’ll delve into more specifics surrounding what an executor cannot do.
Can an Executor Refuse to Act?
Suppose a loved one has passed away, but you haven’t received notice from the executor about probate being opened. This raises the question: What happens if the executor doesn’t probate the will?
First, it’s important to understand that just because someone is named an executor in a will doesn’t mean they automatically assume the role. Until the court formally appoints them at the initial probate proceeding, they are simply a nominee. They have no authority to manage the estate or access the decedent’s assets until they receive court approval — if they do at all.
According to Probate Code section 8001, an executor nominee may be held to have waived their right to serve if they fail to file for probate within 30 days of learning of the decedent’s death and their nomination — unless they have a valid reason for the delay.
In practice, this rule is rarely enforced. Even if more than 30 days have passed, the executor can still open probate by lodging the will with the court. However, waiting too long could allow an unexpected party, such as a successor in interest or a creditor, to initiate probate instead, which may be undesirable.
It’s also acceptable for an executor nominee to decline the role. Circumstances change, and someone who once agreed to serve may no longer have the time or ability to fulfill the required executor duties. In such cases, they can still file for probate but formally decline the appointment at the initial hearing. The court will then look to the will for an alternate executor or appoint an administrator to oversee the estate.
While an executor nominee won’t face penalties for refusing to act, failing to open probate in a timely manner may create complications that ultimately could harm the estate.
Can an Executor Decide Who Gets What?
Suppose a beneficiary tells the executor she would prefer to receive a vehicle from the estate instead of the family heirloom she was originally left. Since the vehicle is worth less than the heirloom, the executor agrees, thinking the swap is fair and benefits everyone involved. This raises the question: Can an executor decide who gets what?
An executor generally cannot decide who gets what from an estate. Their job is to carry out the will exactly as written, with no room for personal discretion. That said, some wills do grant executors the authority to allocate assets as they see fit, but this is very rare.
If an executor has cause to believe a beneficiary engaged in misconduct against the decedent, such as undue influence or fraud, they generally can take steps to challenge a beneficiary’s right to inherit by contesting the will. Keep in mind, however, that the evidence needed to contest a will typically is substantial.
If there is ambiguous language in a will, an executor should resist the temptation to interpret it on their own. Making assumptions could land them in hot water, especially if beneficiaries feel the executor is favoring some of them over others. Instead, the executor should file what is known as a petition for instructions with the court to gain clarity on the meaning of the ambiguous language. This not only protects the executor from accusations of misconduct but also ensures that each beneficiary receives exactly what they’re entitled to.
Can an Executor Be a Beneficiary?
Suppose an executor is also a beneficiary of the estate they’re overseeing. Instead of dividing a real property belonging to the estate among all the beneficiaries as directed by the will, they sell it to themselves, providing the others with the cash equivalent of their shares. While this might seem fair on the surface, some beneficiaries are upset because they want to own the property, not just receive its monetary value. This raises the question: Can an executor of a will be a beneficiary if they have a conflict of interest?
The short answer is yes: executors can be beneficiaries and often are — even if they have conflicts of interest. However, they cannot prioritize their own interests, or those of people close to them, over the collective best interests of the beneficiaries. Any action that suggests self-dealing could be grounds for legal action.
If an executor finds themselves in a position where their conflict of interest could interfere with their ability to administer an estate fairly, it would be advisable for them to involve a probate attorney in their decision-making or altogether reconsider their role. Executors are always entitled to decline their appointment or resign if they’ve already begun serving.
Can Co-Executors Act Independently?
Suppose three siblings are appointed co-executors of an estate, but long-standing rivalries make it nearly impossible for them to agree on anything. The resulting delays in administration frustrate one co-executor so much that she sells an estate property without obtaining her siblings’ approval. This raises the question: Can co-executors act independently?
In most cases, co-executors cannot act alone. Unless the will expressly grants one co-executor the authority to make unilateral decisions, all major actions — such as selling property — require unanimous consent from all the co-executors.
While this rule may seem inconvenient — especially when disagreements delay the administration of an estate — it serves a vital purpose: ensuring no single executor oversteps their authority. It’s possible the decedent intentionally appointed multiple executors to provide checks and balances and better safeguard the estate.
That said, when co-executors’ conflicts with one another become so severe that they jeopardize the estate’s administration, beneficiaries or even the co-executors themselves can petition the court for the removal of one or more of the co-executors to prevent further harm to the estate and keep the administration process moving forward.
Can an Executor Use a Deceased Person’s Bank Account?
Suppose an executor is facing personal financial hardships. To ease the burden, they consider borrowing money from the decedent’s bank account, intending to repay it once they receive their compensation for serving as executor. This raises the question: Can an executor use a deceased person’s bank account?
An executor generally cannot withdraw estate funds for personal benefit, including taking out a loan. Their role is that of a fiduciary, which means they can only withdraw estate funds for legitimate estate-related expenses, such as paying creditor claims or hiring third-party professionals like accountants and real estate agents.
It’s crucial to note that not all bank accounts become part of an estate. If the account has a beneficiary designation (as many do), the beneficiary on the bank account can claim the funds directly from the bank, bypassing probate and the estate entirely. In such cases, the executor has no authority over the account and cannot use it to pay estate-related expenses, let alone use it to benefit themselves.
Can an Executor Withhold Money From a Beneficiary?
Suppose a beneficiary is struggling with substance abuse. Concerned that they might misuse their inheritance, the executor decides to withhold their distribution until they check into a rehabilitation facility. This raises the question: Can an executor withhold money from a beneficiary?
The answer is no. If a distribution has become due and payable (which typically happens at the close of probate), the executor cannot withhold it, regardless of the circumstances. Even if their intentions are well-meaning, executors are legally bound to distribute inheritances in a timely manner without exception.
Can an Executor Change a Will?
Suppose a will instructs for a decedent’s home pass to their children. However, the executor recalls a conversation in which the decedent expressed an intent to leave the home to their sibling instead. Acting on what they believe to be the decedent’s true wishes, the executor modifies the will to reflect them. This raises the question: Can an executor change a will after death?
The short answer is no: an executor does not have the authority to alter a decedent’s will. Once a person loses capacity or dies, their will automatically becomes unalterable and irrevocable. While rare circumstances exist where a will could be modified posthumously, this typically requires unanimous consent from the beneficiaries and court approval.
While conversations may have occurred between the decedent and executor surrounding their final wishes, the beneficiaries may not share their understanding of the decedent’s intent. This is why an executor should never take it upon themselves to change a will, even if they are doing so with the best intentions.
If an executor encounters issues with the terms of a will, the proper course of action is to seek legal guidance. Consulting an attorney or petitioning the court for clarification or modification — rather than making unilateral changes — ensures that any decision made is fair, legal and in the best interests of everyone involved.
Can an Executor Override a Beneficiary?
Suppose a beneficiary was left a real property in a will and makes a request to the executor to have the actual property transferred to them at the close of probate instead of proceeds from its sale. However, because the estate has substantial debts, the executor cannot honor the beneficiary’s request. This raises the question: Can an executor override a beneficiary?
The answer depends on the circumstances. In this case, the executor likely would be justified in overriding the beneficiary, as valid creditor claims must be prioritized over distributions and, by extension, beneficiary requests. If an estate lacks the necessary funds to satisfy creditor claims, selling estate property may be necessary. While the beneficiary in question could object to the executor’s notice of proposed action — which must be served to beneficiaries at least 15 days prior to a sale of estate property being finalized — their objection could be overruled if the court agrees with the executor that the property at issue must be sold to meet the estate’s obligations.
Executors, especially those with full authority, typically have broad discretion in managing an estate. However, they must always act in the best interests of the beneficiaries. If an executor decides to “override” a beneficiary’s request, it should be for the greater benefit of the estate — not for their own convenience or gain. While they are not obligated to fulfill all beneficiary requests, they must operate with transparency and integrity at all times.
Can an Executor Refuse to Communicate With Beneficiaries?
Suppose a year has passed since probate was opened, yet the executor has provided no updates to the beneficiaries. They have no idea how far along the administration process is or when they can expect their inheritance. Despite multiple requests for information, the executor is not communicating with beneficiaries. This raises an important question: Can an executor refuse to communicate?
The short answer is no: executors must keep beneficiaries reasonably informed about the administration process. Beneficiaries should have enough information about an estate to enforce their rights if necessary. In this case, their concerns are valid, as most estates are expected to be settled within a year of the executor’s appointment. If delays occur, the executor should communicate why.
While an executor isn’t required to inform beneficiaries about every minor decision, they must use good judgment in sharing updates. As a rule, anything that is relevant to the beneficiaries’ interests should be disclosed. For example, proposed sales of estate assets (particularly real property), the total value of the estate, information about the estate’s outstanding debts and the status of probate are all details that should be shared.
Can an Executor Refuse to Show Accounting to Beneficiaries?
Suppose a beneficiary requests an accounting around a year after the executor was appointed, but the executor refuses to provide it. This raises the question: Can an executor refuse to show accounting to beneficiaries?
An executor generally cannot refuse to show accounting to beneficiaries. While beneficiaries are entitled to petition the court for an accounting after a year has passed since the executor’s appointment or since the last accounting was filed, they also can informally request an accounting at any time. If a beneficiary request is relevant, the executor must honor within a reasonable timeframe.
There, however, are exceptions. Executors are typically not required to file an accounting if the beneficiary waived their right to an accounting using a legally valid document or if the beneficiary’s inheritance has already been secured. For example, if a beneficiary is set to inherit a house, and the house has already been designated for them and is not subject to sale for paying debts or expenses, an accounting may not be necessary.
While waiving an accounting can save time and money, it also limits transparency regarding the estate’s finances. Before making this decision, beneficiaries should consult an attorney to fully understand its implications.
How to Handle Executor Misconduct
Executor misconduct can significantly impact an estate, potentially jeopardizing both the estate itself and the beneficiaries’ inheritances. That’s why, if misconduct is suspected, it’s crucial to address it promptly and effectively.
As the examples of executor misconduct discussed above demonstrate, an executor overstepping their authority can take many forms. Even if you’re uncertain whether misconduct is occurring, taking the right steps can help you hold the executor accountable and safeguard what’s rightfully yours.
1. Be Proactive
The best way to prevent executor misconduct is to stay actively involved in the estate administration process. This means thoroughly reviewing the will to understand exactly what you’re entitled to, maintaining open communication with the executor, scrutinizing any documents they provide and proactively requesting information as necessary.
Bottom line: Don’t assume you will automatically receive the inheritance you were left in a will. Stay engaged, follow the administration process closely, and take steps to protect what’s rightfully yours.
2. Involve the Other Beneficiaries
If you suspect executor misconduct, consider discussing your concerns with the other beneficiaries, as they may have noticed similar issues or share your suspicions. If legal action becomes necessary, joining forces can strengthen your case and help distribute legal costs, making it more effective and financially manageable to hold the executor accountable.
3. Document Everything
Strong evidence is key to any court case. That’s why it’s essential to keep a detailed record of all correspondence you have with the executor — even if you don’t initially suspect misconduct. If you notice any questionable behavior, also document that with the date, time and nature of the alleged misdeed.
Whenever you make a request to the executor, do so in writing. This creates a clear record that can serve as proof if legal action becomes necessary.
Maintaining proper documentation won’t just strengthen your case; it will also be invaluable when consulting with a fiduciary misconduct attorney for guidance on next steps.
4. Consult with a Fiduciary Misconduct Attorney
It is essential to consult with a fiduciary misconduct attorney at the first sign of questionable conduct from an executor. If an executor is abusing their authority, they could be financially damaging the estate in the process — and the longer their abuse goes unchecked, the worse the consequences may be. An attorney can intervene to stop further wrongdoing and losses and possibly even recover damages.
If you have documentation or other evidence, share it with your attorney. This can help inform their investigation. If they uncover signs of executor misconduct, they’ll guide you on the best course of action to hold the executor accountable and protect your inheritance.
5. Litigate If Necessary
Once you have a clear understanding of how the executor has overstepped their authority and the remedies you’re seeking, you can take the next step: filing a petition with the court with assistance from your attorney. This will set in motion the litigation process.
Keep in mind that litigation isn’t the only path forward. Mediation — where the parties negotiate a settlement under the guidance of a neutral third party — can be resorted to at any stage, even after a lawsuit has begun. This approach can save significant time and money.
If your case proceeds to trial, be prepared to appear in court with your attorney, who will present evidence and arguments on your behalf. If you prevail, you may be able to recover your legal costs — either from the estate or, in some cases, directly from the executor.
Executor FAQs
If you continue to have questions about what an executor can and cannot do, check out the frequently asked questions below. Our firm is always available to provide personalized guidance should you require it. Simply contact us.
Does an executor of a will get paid?
Yes, executors are entitled to compensation — unless they choose to waive this right. Typically, they receive “ordinary” fees, but if their duties extend beyond the typical responsibilities of an executor, they may also qualify for “extraordinary” fees.
Ordinary executor compensation, which mirrors that of the executor’s legal counsel, is governed by Probate Code section 10800. For extraordinary fees, the executor and their legal counsel must provide justification to the court. The court must approve the extraordinary fees before compensation is taken.
To understand how much probate will cost in total, review our breakdown of California probate fees.
How do you become executor of the estate?
To officially serve as an executor, you must be formally appointed by the court at the initial probate proceeding. Until then, you are simply a nominee with no legal authority over the estate.
In most cases, a will creator informs their chosen executor before their passing, allowing the executor to prepare for their role. This way, when the will creator dies, the named executor will know how to locate and access the will and can begin the probate process by lodging the will with the court.
However, if no executor was named in the will, if the named executor declines their appointment and no alternate is listed, or if the court refuses to appoint the named executor, the court may appoint an administrator to oversee the estate instead.
Is a will invalid if an executor dies?
No, a will is not invalid if the named executor dies before the will creator. If an alternate executor is named in the will, that person may have the ability to serve in the deceased nominee’s place. If no alternate executor is named, the court generally will appoint an administrator according to the order of priority stipulated by Probate Code section 8461.
Is a personal representative the same as an executor?
An executor is a personal representative. A personal representative can be either an executor or administrator.
How long does an executor have to read the will?
An executor is not required to “read a will” in California; therefore, there is no deadline by which the reading of the will must take place.
That said, interested parties must be notified about administration of a decedent’s estate at least 15 days prior to the initial probate proceeding, according to Probate Code section 8110.
Still have questions about what an executor cannot do?
Executors are bound by strict rules to prevent abuse of power — because when they overstep, the consequences can be devastating, placing both the estate and beneficiaries’ inheritances at risk.
At Keystone Law Group, our skilled probate attorneys specialize in holding executors accountable for misconduct. We take swift and strategic legal action to stop wrongdoing in its tracks and protect the integrity of the estate.
Don’t let an executor’s misconduct go unchecked. Even if you’re unsure whether their actions cross the line, our attorneys can investigate and guide you on the best course of action to take. Call us today to learn how we can help.
