What an executor cannot do

Breaching fiduciary duty is grounds for removal

Elissa

By

Elissa Suh

Elissa Suh

Personal Finance Editor

Elissa Suh is a personal finance editor at Policygenius in New York City. She has researched and written extensively about finance and insurance since 2019, with an emphasis in estate planning and mortgages. Her writing has been cited by MarketWatch, CNBC, and Betterment.

Published September 2, 2021|3 min read

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An executor or administrator is the person in charge of settling the affairs of a deceased person and taking care of their estate. Executors have a fiduciary duty, or legal responsibility to carry out the terms of the decedent’s will. The executor can be removed or face legal consequences if they do anything unlawful or breach their duties while administering the estate. 

Key Takeaways

  • The executor has a fiduciary duty to act in the best interests of the estate

  • Doing anything for personal interest when you’re estate executor is grounds for removal

  • Beneficiaries have a right to sue the executor or request a replacement executor

  • When estate planning, you can appoint someone you trust to serve as executor in your will

Influence the testator

The executor can’t force or persuade the testator (will writer) to make a will against their wishes (undue influence), or sign a will on the testator’s behalf. Doing either of these things will invalidate the will.

Learn more about what makes a will invalid.

Fail to communicate with beneficiaries

The executor must notify beneficiaries and the decedent's potential heirs about the will, typically within a certain period of time according to your state law. When executors can't find a beneficiary or heir, they may need to provide the court with proof that they've done their due diligence trying to locate and contact them.

Even after initial contact, it can be a good idea for the executor to stay in communication with the beneficiaries to make them aware of how far they are along in the estate administration process.

Go against the will or change it

Executors can’t change a will and have to follow the instructions in it. If the will makes a specific bequest, the executor has a duty to make sure the right beneficiary receives the asset. If the beneficiary is unable to receive it, then a contingent beneficiary named in the will receive the asset; the executor is not entitled to take it. If the will is ambiguous, executors can consult with an estate attorney or even the probate court for clarification and guidance.

Prevent a beneficiary from contesting the will

Beneficiaries who are dissatisfied with a will's terms may try to contest the will by filing a petition with the court, and executors can’t prevent them from doing so.

Mishandle the decedent's assets

When handling estate assets, an executor should not:

  • Be negligent, like failing to repair estate property

  • Stop making payments, like on the deceased's mortgaged property

  • Damage or lose assets

  • Forget to have a professional appraisal when selling estate assets

  • Sell assets for less than fair market value

Executors should also not mix, or commingle, the estate's assets with their own personal funds — you typically open an estate account to pay for necessary expenses related to executor duties.

Steal from the estate

An executor should not take any or use any assets for their own personal gain or expenses. It's common for an executor of a will to also be a beneficiary, in which case they can take their inheritance when it’s time to distribute all the assets. Executors are paid for their work as well.

When executors need to sell estate property, they cannot sell it to anyone, including themselves, below the fair market value.

Not pay taxes or creditors

Executors can’t distribute assets to beneficiaries until they have taken care of the decedent’s debts and taxes. When you die, your debt does not usually disappear. The executor is obligated to notify the decedent’s creditors and settle debts, in addition to paying estate tax and filing any necessary tax returns. (Inheritance taxes are paid by beneficiaries and most states do not charge one.) 

Learn about what happens to your debt when you die

Consequences for executor misconduct

If you fail to perform your executor duties, you can face legal consequences. Beneficiaries can ask the probate court to remove an executor or even bring a civil suit against them. As a consequence, the court may replace the executor or provide an independent executor to work alongside them. Executors who steal from the estate may have to repay the estate with their own money.