The term executor refers to the person in charge of a decedent’s (i.e. the person who passed away) estate. An executor is responsible for distributing the assets of the decedent’s estate, in accordance to the will, to the beneficiaries named in the will. This person manages the decedent’s estate, and ensures that the debts of the estate are taken care of, in addition to any other financial matters.
An executor is specifically named in the will of the deceased, who is also known as the “testator”. Often the executor is a relative, spouse, or a friend. However, an executor may also be an attorney, or some other qualified individual. If the testator has not named at least one executor, the probate court may appoint an executor.
A probate court will supervise how the executor distributes estate assets, as well as the process of paying debts or taxes owed by the estate. The most important defining factor of an executor is that whoever has been appointed agrees to manage the estate according to the decedent’s wishes, as they expressed in their will.
In terms of duties, an executor’s duties may vary according to the nature of the estate that they are managing. The executor must ensure that all of the decedent’s taxes and debts are paid before distributing what is left to the appropriate beneficiaries, who have been specifically named in the decedent’s will.
Additionally, the executor is given a fiduciary duty. What this means is that they must act in a manner of good faith and impartiality when ensuring that the desires of the deceased are carried out, to whatever extent possible. Another way of putting it would be that a fiduciary duty is the duty to protect and manage the testator’s estate, in the best interests of that estate.
In regards to the testator’s property and assets, fiduciary duty further determines that the executor must take all reasonable steps to fulfill whatever instructions the decedent left behind. Estate executors have an additional duty to refrain from specific actions or conduct. An example of this would be using the decedent’s assets for their own personal gain or profit.
What Are Some Specific Executor Duties?
An estate’s executor will be tasked with many specific jobs in order to fulfill their duty. Some of the most common examples of such duties include, but may not be limited to:
- Tying Up Loose Ends: The executor must notify financial institutions as well as governmental institutions of the testator’s death. Additionally, they must ensure that they terminate any credit cards and leases. Some examples of such institutions include banks and Social Security Administration;
- Use Estate Funds to Pay Expenses: The estate’s executor will need to use the funds from the estate to pay any ongoing or outstanding expenses. Generally speaking, this will include paying any property expenses associated with property that is still held within the estate;
- Pay Off Debts and Taxes: As previously mentioned, the executor will need to file a final income tax return on behalf of the decedent. Creditors must be notified if there are any probate proceedings that they should be aware of;
- Create a Bank Account: The executor must ensure that a bank account exists for money owed to the decedent. This estate bank account will collect the deceased’s assets, such as paychecks, stock dividends, etc;
- Arrange for Probate Proceedings: This step will not always be necessary, depending on the state in which the estate exists and several other factors. The executor will need to determine how much the estate must be worth in order for probate to be required under those specific state laws;
- Determine Who Inherits What Property: It is important to note that the executor themselves is not deciding who inherits what property, if any. Rather, they are using the valid will as a reference to determine who was mentioned as a beneficiary, and ensuring that they receive what was intended for them. If a legal and valid will does not exist, the court will defer to state law in order to determine who is entitled to inheritance;
- Distribute Property: The estate’s property should be distributed whenever possible. Although probate will be required for specific types of property, other property may be distributed immediately to the will’s beneficiaries. This should be done whenever possible;
- Locate and Manage Assets: Some of the decedent’s property may need to be located and identified before it can be distributed. The executor will be responsible for finding and managing such assets during the probate process; and/or
- Supervise Distribution: It is important to remember that the executor is someone that the testator trusted to supervise the distribution of property and other assets to their beneficiaries, according to their will. The decedent may have left very specific distribution instructions regarding certain beneficiaries, or certain items of property. The executor should always do their best to adhere to these instructions.
Can An Executor Be Sued For Violating Their Duties?
An estate’s executor is prohibited from taking specific actions, or engaging in specific behaviors. Some common examples of things an executor is not allowed to do include, but may not be limited to:
- Mixing their own personal funds with those of the estate;
- Making unreasonably risky judgments in terms of the estate’s investments;
- Using estate assets for personal gain, which is referred to as self-dealing;
- Refusing to distribute to heirs and beneficiaries what is rightfully theirs, as stated in the decedent’s will;
- Any violations of the law in general;
- Any instances of fraud associated with the estate’s assets or debts; and/or
- Failing to adhere to the exact instructions of the decedent’s will, when exact instructions are provided.
Violation of any of these duties could result in executor liability, as well as legal proceedings. An example of this would be a judge removing the executor from their position, and appointing a new executor in their place. Generally speaking, the person who is requesting that the executor be removed from their position must file a request with the court. When doing so, they will need to provide a valid reason for removal, as well as any evidence that supports their claim.
In some cases, suing the executor may be necessary. An example of when this would be necessary would be if the executor’s actions result in severe losses for the estate, which require legal action to assist in recovering said losses. Damages may be awarded to the plaintiff if the court finds an executor to be at fault.
When an estate names several beneficiaries, all heirs must agree to sue the executor. Each beneficiary will be responsible for providing any records of what is owed to them prior to going to court. Many states have a statute of limitations, or time limit, as to when a claim against an executor must be made.
Additionally, every beneficiary must agree to the executor’s replacement. The probate judge can offer a replacement executor; or, the heirs may inform the judge of the new executor they have unanimously chosen.
If you need to sue an executor, it is imperative that you document what you believe the violation involves. Additionally, you should review the will yourself in order to determine what rights you have, or what the rights of the affected parties may have been. It is advised that you create and maintain a written account of any statements or actions on the part of the executor that could be used as evidence to support your claim.
Do I Need An Attorney To Sue An Executor?
If you think you will need to sue an estate’s executor, you should consult with an experienced and local estate attorney as soon as possible. Only specific parties may sue an executor, and state laws regarding the matter vary widely.
A local lawyer can help you determine what your state’s laws are, and whether you have any legal options according to those laws. Additionally, your attorney will also be able to represent you in court, as needed.