What Power Does an Executor of a Will Have? The Complete Guide
If you’ve recently lost a loved one, you may be dealing with handling their estate. You might even be named as the executor in their will or consider taking on the role if no one was named. One of the critical questions a person may ask about being an executor is “Can an executor decide who gets what?”
The following guide will help you understand the executor’s role and how much power they have in dealing with the estate assets as well as who gets the final say. Just remember that if you have any questions, you can contact a probate attorney for legal advice.
How is the Executor Chosen?
The decision on who will be the executor of an estate is both simple and complex. If the decedent left a will and named a person as their executor, in most cases that person will serve in the role. Before an executor can begin their fiduciary duty, they must be approved by the probate court in the county where the decedent lived or owned property.
If there is no will or no one was named as executor, anyone may request an appointment to this role. However, the court will decide based on state law. In some cases, the person appointed by the will may not be able to serve their fiduciary duty.
They may have been appointed early on in the estate planning and died before the decedent or be in ill health and unable to take on the tasks of the role. In this case, the probate court will appoint someone. Most of the time, the executor will be one of the family members who will receive an inheritance, but a probate attorney may also act in this role.
Can an Executor Be Removed?
A person may be removed or replaced as executor with the court’s approval. For this to happen, someone would need to prove that the executor wasn’t performing their duties or acting in the best interest of the estate. If they showed evidence of bad conduct, the court could have them removed and replaced with another executor.
Probate Court Gives Authority to the Executor
Once the executor is approved by the court, they will receive what is known as letters testamentary. These documents show that the executor is allowed to act on behalf of the estate. The executor may also be known as the personal representative or administrator of the estate.
Once the executor receives the documents giving them authority for certain tasks, they can present the paperwork when they need to perform the duties of their role. They can also seek legal advice if they need help in performing their duties.
Power of the Executor to Manage and Protect the Estate Assets
One of the most important of the executor’s duties is to protect the assets of the deceased person. They must secure all assets and ensure they are safe. This may include the estate funds as well as physical assets, such as real estate property or personal property.
Once all assets are secure, the executor will take inventory of what is owned by the estate. Part of the executor’s job is to estimate the fair market value of the estate’s assets. They have the power to hire an appraiser who will determine the value of the property.
Power of the Executor to Pay Debts of the Estate
Another part of the responsibilities of the executor is to pay off all debts of the estate. They will need to provide notice to any creditors, so they will know that the estate is in probate and have time to submit a claim. Some states require that a letter be sent out to all known creditors and publish a notice in a local newspaper. Other states only require publication.
As the claims come into the estate, the executor has the power to pay the debts. If they don’t have enough liquid assets, they may also have the power to sell property. How this is handled varies by state. Some state probate codes require the executor to get approval from the court before they sell assets.
The Executor Must Deal with Delays
Selling estate property isn’t as easy as it might sound, especially if real estate or other large physical items are involved. It can take months before real property or a business will sell, during which time the executor must maintain the property as part of their fiduciary duties.
Disagreements with the Beneficiaries
Other family members may not agree with how the executor is handling the estate, which can also cause delays. They may take legal action to prevent the sale of an asset by filing a petition with the court. Estate litigation can take months to be resolved before the executor can continue the process.
Other beneficiaries don’t have the authority to make decisions regarding the handling of the estate, but they do have the power to make the executor’s job more difficult, especially if they do not feel the executor is acting in the best interests of the estate. The only interested parties that can delay the probate process are interested parties to the estate, such as beneficiaries.
Power to Distribute Assets
One of the most important powers of the executor is to distribute assets to named beneficiaries. They must transfer the title or deed to the new owners of the asset. This won’t happen until all debts are paid, including federal taxes, state taxes, and estate taxes.
Other assets, such as bank accounts, might be liquidated and combined into one estate account to disperse more easily to the heirs. How everything is distributed will depend on the stipulations of the will or the state’s laws on probate. Interested persons may contest the will if they believe the decedent wasn’t of sound mind. However, they can’t contest it if they simply don’t like the terms.
Other Duties of the Executor
The executor must oversee the administration process with the estate. This may mean keeping records of all expenses and any income produced or interest earned by the estate. They may need to hire an accountant, estate lawyer, appraiser, or other experts to assist in the process, but they are responsible for overseeing it.
To ensure they are properly executing the will, the executor may want to contact a law firm for assistance. Generally, this is the attorney that handled the last will.
Final Say for an Estate
It’s also important to remember that the court has the final say on what happens with the estate, not the executor. While the executor has certain powers in managing the estate, they have no power over the beneficiaries and must follow the state’s law. Their goal is to follow the wishes of the deceased person in all their actions as expressed in the will.
If you need help in a specific legal matter as an executor or one of the heirs or would like to consult for general informational purposes, you should contact an estate attorney for advice.