What An Executor Cannot Do
Each estate plan is different and therefore places different demands on each executor. An executor wears many hats in the probate process from opening the case in probate court, carrying out the will, and distributing assets.
Unfortunately, there are times where the will provisions are more complicated than usual, or, you simply get stuck with a bad executor.
In either case, it’s good to educate yourself on what the boundaries are as an executor (known in the state of Arizona as Personal Representatives) of an estate, or, whether the executor you currently have named is the best choice.
The Responsibilities of an Executor
Depending on the complexity of the will and amount of real estate and estate assets, the role of an executor can take many forms.
A rule of thumb to keep in mind is that the executor is there to serve the beneficiaries and surviving spouse of the decedent while also acting in the best interest of the estate. This is because the executor has a fiduciary duty to the estate beneficiaries and family members of the decedent, which must be honored through the probate process.
While the following list is not exhaustive, estate executors generally are responsible for the following core duties:
- Opening probate in Probate Court
- Notifying beneficiaries of the estate
- Disbursing assets or money from the estate in accordance with the will
- Paying back debts and income tax of the decedent
- Closing out the estate
Where the Line Blurs: Executor Misconduct
Executor misconduct is a difficult topic that runs along a spectrum. While some actions are clearly wrong or off putting, others can land in a precarious grey area.
Executors cannot act unless appointed by the Court
What many executors don’t realize is that just because they have been named in a will does not mean they can act in that capacity right away. In fact, unless the Court actually appoints the executor, they are not allowed to take any action.
Executors cannot sign on behalf of the testator
To validate a will, the testator must sign and date the document in their own hand. As such, the executor cannot sign on behalf of the testator.
If the executor is in a position where the testator does not sign their will before death, the Court may not recognize the will and so continue with probate as though there was no will in existence.
A named executor should not witness a will in which they are named as Personal Representative.
Alter disbursements or change beneficiaries
The executor is meant to carry out the wishes of the testator and act in the best interest of the estate. They cannot change the document to reflect their own wishes. As such, executors cannot change the beneficiaries listed in a will or the disbursements they receive.
Execute the will before the testator’s death
A will is a document meant only for use after an individual’s death. An executor therefore cannot begin making disbursements or selling assets before the death of a testator.
Prohibit beneficiaries form contesting the will
It is the right of any heir, beneficiary, or individual, to contest a will if they believe injustice is at play. Although language can be added to a will listing the potential consequences of a will contest, you cannot actually block the will contest itself.
Can You Remove the Executor?
When beneficiaries begin to suspect executor misconduct of any kind, it is within their rights to bring the issue to the Court.
The Court acts as a safegaurd to remove incompetent or untrustworthy executors.
Seeking Legal Advice
Having an experienced estate planning attorney to help you through the probate process saves time and effort for you and your loved ones. With decades of experience, Susan Sandys can organize your assets to ensure your affairs are in order, giving you peace of mind.
Call at (602) 996-4076 or email Sue at [email protected] to schedule an appointment and get the estate planning help that is right for you.