If you are the beneficiary of an estate, then your inheritance will be managed and ultimately distributed to you by the estate’s executor or administrator.
An estate executor has many duties, and it can be difficult to wrap your head around what they’re allowed and not allowed to do, and that can make it tough to determine whether or not the estate is being managed properly.
So, let’s explain what an executor cannot do—and also what they can do—so you can make sure you receive all that you’re entitled to.
What is an Executor?
An estate executor is a person (or entity) appointed to manage the affairs of someone who dies with a will. (The person who adminsters the estate of someone who dies without a will is called an “administrator” but their fiduciary duties are largely the same.)_Where a deceased person leaves a will setting out their desires for the distribution of their assets, it’s the executor’s duty to carry out those provisions.
Related Blog: A Crash Course on Fiduciary Duties
What Makes a Good Executor?
It’s important to remember that an executor’s primary duty is not to please the beneficiaries, but to faithfully carry out the provisions of the will or trust. This emphasis on their role can reassure you about their duties and the fact that their actions are guided by the deceased’s wishes.
However, you may still have concerns about whether or not the executor is ethically, responsibly, and efficiently carrying out their duties.
Ether you are serving as an executor or you are an estate beneficiary, it’s helpful to know what the executor can and cannot do, whether you’ve been appointed the executor of an estate or made a beneficiary.
First, let’s review what an executor cannot do.
Related Blog: Executors & Trustees: What to Know About the Fiduciary Duty of Loyalty
What an Executor Cannot Do (And Should Not Try to Do)
An estate executor cannot do the following things:
- Cannot steal money or assets from the estate.
- Cannot use assets from the estate for personal needs.
- For example, if there are assets like a boat or house that are part of the estate, the executor cannot take the boat on a pleasure cruise, or throw a house party on the property. There are some exceptions. For instance, if a child is serving as executor of a parent’s estate, they’re able to live in a piece of real estate that has been passed down to them, so long as this inheritance is clearly stated in the will/trust.
- Cannot pay friends or family members to work for the estate at excessive rates.
- It’s best for executors to avoid hiring contractors with whom they have personal relationships.
- Cannot pocket estate income, such as rents and interest.
- Cannot transfer assets to people who are not beneficiaries, unless via a sale at fair market value.
- Cannot sell assets for less than market value.
- Cannot disqualify or remove beneficiaries from the will/trust (except where the beneficiary violates an in terrorem clause).
Related Blog: Can a Beneficiary Sue the Executor?
- Cannot refuse to provide copies of the will/trust documents to beneficiaries.
- Executors must send periodic status updates to beneficiaries, and they must respond to reasonable questions and requests. However, they do not have to respond to small and unreasonable requests that are unnecessary for administering the will. Obviously, this is an area of great subjectivity.
- Cannot alter the terms and provisions in the will/trust.
- Cannot take actions to administer the will/trust before the trustee dies.
- Cannot take actions to administer the will before being appointed as executor by the probate court.
- Even if the will names an executor that person must apply to the probate court to be appointed and have the will accepted for probate before acting to administer the will.
- Cannot prevent beneficiaries from contesting a will or trust.
- Cannot override beneficiary rights.
- Beneficiaries may have certain rights that include right of first refusal or payout terms on a certain asset.
- Cannot unnecessarily drag out the process.
- Executors cannot intentionally delay the administering of the estate and should transfer assets to or pay the beneficiaries as soon as possible.
Related Blog: Can an Executor Override a Beneficiary?
What an Executor Can Do
The executor does have certain powers that may or may not be explicitly stated in the will or trust. Here are things that an executor can do:
- Can open probate with a court.
- Can pay the deceased person’s debt using estate assets.
- If you have concerns about how the executor is handling the deceased person’s debt, it’s best to consult with an estate lawyer. This step can help you feel secure and protected, knowing that any potential mishandling of the estate will be addressed by legal professionals.
- Can be reimbursed using estate funds for reasonable and necessary expenses they paid to administer the estate.
- This almost always requires court approval, and the executor must keep thorough records of these expenses.
- Can receive a commission based on the value of an estate.
- In some cases, the executor’s compensation will be predetermined and is outlined in the will. Otherwise, the state of Georgia allows executors to take a 2.5% commission on all money brought into the estate and 2.5% on all money paid out of the estate. Georgia executors may also petition the court for additional compensation based on “extraordinary services.”
- Can sue a beneficiary on behalf of the estate.
- If one beneficiary damages the estate, for example by damaging estate property, the executor can sue the beneficiary on behalf of the estate to recover damages.
Related Blog: What is the Process for Probate in Georgia?
How Do I Know the Executor is Being Honest?
Now that you know what an executor can and cannot do… how do you know whether they’re doing or not doing it?!
There are usually a few signs that an executor is not being honest:
- The executor won’t give you the important information that you’re asking for (i.e., copies of the will/trust, asset inventory lists, and estate financial documents).
- Lack of communication between the executor and beneficiaries
- Appearance of bias toward one or more beneficiaries
- Assets are being sold or discarded without notification
- Assets are being sold under the market value
- Friends or family members of the executor are being hired to do estate work
Related Blog: What To Do When the Executor Won’t Communicate with You
It’s important to remember that being an executor can be very challenging, and it may take longer for the executor to administer the estate than preferable. If you’re a beneficiary, remember to be patient and avoid being hostile to the executor. You should also review the will carefully so you know how the estate should be handled—this will make it easier to identify wrongdoing.
When To Enlist an Estate Litigation Firm
If you suspect that a Georgia executor is mishandling the estate or engaging in fraud, it’s best to contact a fiduciary litigation firm as soon as possible. That’s what we do at Gaslowitz Frankel.
Fiduciary attorneys can help you understand your rights as a beneficiary and will make sure that you’re able to recover the inheritance that’s owed to you.
At Gaslowitz Frankel, we understand that you’re already dealing with grief following the passing of a loved one, so we take extra care to make sure the litigation process goes as smoothly as possible—we take the time to understand your situation and keep you updated through every step in the process so your challenging times are a little more bearable.Contact us today if you’d like to know more about how we can help.
