When a person creates their will, the person names an “executor” in the will. An executor acts as the personal representative of the person who created the will. The executor administers the estate of the person after that person dies. Executors have legal duties both to the deceased and the estate. Executors may be sued in court if they violate these duties.
The executor of an estate is a person (it can be more than one person) who is responsible for distributing the assets of the estate to the will beneficiaries. This person, who is named in the will of the deceased (also known as the “testator”) can be a relative or a friend. If the testator has not named one or more executors, the probate court may appoint an executor.
A probate court supervises the executor’s distributing estate assets. The probate court also supervises the process of the executor’s paying debts or taxes owed by the estate. Whoever is appointed agrees to manage the estate in accordance with the deceased person’s wishes, as expressed in the will.
Specific duties of an executor may include:
- Locating the will. In many instances, the will may be located among the testator’s personal effects. In other instances, the original will may be with the attorney who assisted the testator in preparing it;
- Obtaining a copy of the death death certificate;
- Conducting an inventory of the testator’s assets;
- The testator must locate all of the testator’s assets and liabilities (i.e, debts) and provide an inventory of these to the probate court;
- Paying creditors to whom the estate owes a debt. Creditors include tax authorities (e.g, the IRS) Creditors also include other persons and entities whom the law gives the right to collect on a debt;
- Filing a petition to probate the will with the probate court. The executor must give notice of this filing to all known persons who may have an interest in the will;
- Distributing assets according to the will’s terms; and
- Performing other duties named in the will that are required of the executor. These may include (among other things) arranging for a funeral or a burial.
The law imposes a duty on the executor to perform their duties diligently and honestly. This duty is known as a fiduciary duty. A fiduciary duty requires that an executor act in good faith in the course of will administration and distribution.
Actions that violate the fiduciary duty can include:
- Stealing money from the assets of the estate;
- Taking money from the sale of any assets belonging to the estate;
- Distributing assets in a manner that defies the testator’s wishes (such as by refusing to give a named beneficiary a distribution);
- Improper management of estate funds. Improper management may consist of failing to make prudent investment decisions with respect to estate assets;
- Failing to comply with court-ordered deadlines; and
- Taking an excessive amount of time to perform executor duties.
If an executor has breached their fiduciary duty, one or more parties with an interest with the will may file a lawsuit with the probate court. If the court finds that the breach has resulted in a loss to a beneficiary, the court may order removal of the executor from their position. In such instances, the court will appoint a new executor. The court may order the executor personally liable to the beneficiary. That is, the court may require that the executor compensate the beneficiary for their loss.
If the actions of the executor have depleted assets of the estate (such as when an executor takes assets for their own personal use), the court may order these assets disgorged. To disgorge assets is to require that someone who has obtained an improper benefit, to “pay back” that benefit.
In extreme cases, an executor can be subject to criminal penalties for using estate property improperly. An executor may face jail time if for disobeying an order of the probate court. For example, the judge may order the executor to distribute an asset to a beneficiary. The executor may refuse to do so, in disregard of the will’s terms and the testator’s wishes. If the executor disobeys the judge’s order, the executor faces criminal prosecution.
If you have an interest in the will and believe the executor has harmed you by breaching a legal duty, you may wish to consult with a estates attorney. An experienced local wills, trusts and estates attorney can advise you as to the appropriate course of action. The attorney can also assist you with filing the necessary legal documents. The attorney can also represent you in court.