Duties of an Executor in California and What They Legally Can or Cannot Do
In California, being nominated as the executor of a will means you have been appointed a fiduciary duty to stick to the will’s terms in compliance with California law. With this duty, you may be held liable if you fail to perform it as required — this duty could last decades.
If you have recently been nominated as the executor of a deceased person’s estate, you may want to learn more about the role of an executor, what is expected of you in this role and what you legally can or cannot do.
What Is an Executor?
An executor is someone who was nominated by the deceased person in his or her will to administer the estate as directed by the will. Even if you are nominated to be an executor, however, you do not need to accept the nomination, though most people who are nominated do take up the responsibility. This is usually because the deceased person was a relative or friend who depended on the nominated person to carry out his or her wishes.
To be nominated as an estate executor is considered a great honor, and with the assistance of an experienced attorney, you will not need to shoulder all the responsibility alone.
Trustee vs. Executor
Though executors and trustees share some similarities, they do not have the same roles or responsibilities. Both are fiduciaries, meaning they are in charge of another person’s money. However, an executor is responsible for a person’s estate, while a trustee is responsible for a trust. Trustees administer a trust to beneficiaries, while executors distribute a decedent’s assets according to a will.
How You Become an Executor
There are a few steps involved in becoming an executor.
- Receive nomination to be executor: An executor is usually nominated in a will.
- Receive notice of hearing: You will receive notice from the court of a scheduled hearing.
- Attend scheduled hearing: You and any interested parties will attend the hearing. Interested parties can raise objections to your nomination as executor during the hearing.
- Become formally appointed as executor: After the hearing, the court will formally appoint you as an executor.
- Assume fiduciary duty: Once you are appointed as an executor, you can assume your fiduciary duties. While performing your duties, you must comply with the legal requirements imposed by California law and the terms of the will.
There can be more than one executor appointed, and each executor is responsible for performing the requisite duties. If the will does not nominate an executor, the court will appoint an administrator to perform the same function. The estate administrator is typically a relative.
What If You Do Not Want to Be an Executor?
You do not need to accept a nomination as an executor. If you are concerned you do not have the ability or time to fulfill your duties, you can refuse to accept the executor appointment. The court will then appoint another executor. Typically, the deceased person’s will includes successor executors if one does not wish to or is unable to serve.
If you accept the appointment but later want to resign from your role as executor, you can request to be discharged by the court. However, if you have already been appointed as an executor, you may not be discharged by the court unless the court decides your discharge will not harm the beneficiaries. Keep in mind that your fiduciary duty remains in place until you are discharged by the court.
What an Executor Can Do
As an executor, your duties include selling estate property as necessary, settling the estate’s debts and distributing the estate’s assets to beneficiaries and heirs according to the deceased person’s will. As the estate goes through probate, the executor should protect its interests. Though the job is mainly administrative, the executor’s actions can influence the beneficiaries’ livelihood. As a result, legal action is sometimes necessary to help an executor ensure the estate is protected or to stop a wayward executor.
Can I Use Money From the Estate?
Executors tend to hire a few different professionals to help them successfully perform the duties required of an estate executor. The estate can pay the reasonable cost for these experts, including insurance brokers, property managers, accountants and attorneys. Many courts also allow the estate executor to pull reasonable compensation from the estate’s assets.
Can I Be a Beneficiary If I’m an Executor?
If you are an executor, you can also be a beneficiary. In fact, this is usually the case. Many people nominate one of their adult children as their estate executor, and children are usually the beneficiaries listed in a will. Keep in mind, however, that a probate judge needs to formally appoint the executor and may designate someone else if he or she finds you are incapable of correctly performing the job.
Can I Sue a Beneficiary?
Usually, there is no need for an executor to sue a beneficiary over their role since a beneficiary does not have any fiduciary duty to the executor and no duties to the estate that could be violated. However, as the executor, you have the right to contest the will if you can prove a beneficiary came into their inheritance via malfeasance, subterfuge or improper influence.
If you are unsure what you can do as an estate executor, consult the experienced lawyers at Barulich Dugoni & Suttmann Law Group, Inc. for legal guidance through probate matters in California.
What an Executor Cannot Do
As an estate executor, you cannot engage in dishonest or fraudulent activity or act in a way that benefits only yourself rather than the will’s beneficiaries.
An Executor Cannot Use the Estate for Financial Benefit
Beyond the normal payment owed for conducting their duties, executors cannot use this position to secure a financial benefit. An executor cannot, for instance, sell one of the estate’s property assets to themselves for a below-market rate. This would be considered a dishonest, unfair act used to gain an advantage through the position of executor.
An Executor Cannot Decide a Beneficiary Does Not Get What the Will States
Estate executors need to abide by what is written in the will. As an executor, your job is to carry out the final wishes of the deceased person as written in their final will and testament. You do, however, have some flexibility with selling assets or property that has not been designated for disbursement to a certain beneficiary if this money is necessary to meet the requirements of the will or pay bills.
If a beneficiary suspects you are not acting in the estate’s best interests or not doing as the will directs, he or she can appeal to the probate court. You could be removed from your position as executor under California law if you:
- Violate a law.
- Neglect the estate or any of your duties.
- Mismanage, waste, embezzle or commit fraud on the estate.
- Appear to be a threat to the protection of the estate or its interested parties.
- Show yourself to be incapable of executing your duties properly or otherwise unqualified to serve as estate executor.
Executor Responsibilities to Beneficiaries
As an executor, you owe a fiduciary duty to the beneficiaries of the will. You owe the beneficiaries the same good faith and duty of care that a parent owes his or her child and a spouse owes his or her spouse. To ensure beneficiaries of the will are protected, you must provide them with the greatest degree of protective action.
In particular, executors’ greatest responsibility is to notify beneficiaries about their status as beneficiaries. A beneficiary should be informed about their inclusion in a will early in the probate process so he or she can contest anything with which they take issue. Beneficiaries also have the right to information regarding the probate process and the estate, including the assets, debt and plan to pay the debt.
Executors also have the responsibility to distribute assets in a timely manner. This requirement is in place to prevent executors from allowing the estate to sit in limbo after going through probate.
What Are the Duties of an Executor of a Will in California?
The law in California imposes several duties on executors. Estate administration responsibilities and duties can initially seem overwhelming, especially for someone who has little experience in similar roles. As such, it is essential to understand what exactly is required of executors according to California law.
As an executor of a will in California, you are expected to administer and manage an estate for the beneficiaries’ benefit. Your duties include:
- Paying debts to creditors.
- Maintaining proper records.
- Managing the estate assets.
- Appraising the estate assets.
- Identifying all the estate’s assets.
- Notifying beneficiaries of the death.
- Taking inventory of the estate assets.
- Paying California estate taxes if necessary.
- Notifying beneficiaries of probate hearings.
- Terminating contracts, leases and subscriptions.
- Filing status and accounting reports if required by the court.
- Paying necessary expenses for maintaining the estate’s assets.
- Seeking assets owed to the estate and filing a lawsuit if needed.
- Accounting for taxes and ensuring all taxes are paid by the estate.
- Opening bank accounts if needed for cash flow as the estate closes.
- Settling claims made against the estate in the estate’s best interests.
- Informing banks and government agencies about the testator’s death.
- Complying with the will while distributing the remaining estate assets.
- Overseeing the distribution of estate assets to beneficiaries and filing any necessary petitions.
- Locating heirs and informing them about the status of the estate and filing the requisite notices.
- Paying ongoing expenses that are needed for keeping assets secure, like insurance, mortgage payments and utility bills.
The amount of work you will have to put in as an estate executor depends on various factors. For example, if the deceased person has a simple estate and no one challenges the will, your duties may be straightforward and the process will likely be relatively smooth.
When the deceased’s estate is complicated or a relative contests the will, however, you may be dealing with the process for years. Adult children can sue several years after a will’s creator passes away, so your duties as an executor can last for many years.
If you are unsure how to go about your duties as an executor, you may want to get in touch with an estate attorney who can evaluate the will and make sure you do not run into any issues while performing your duties.
How Long Does an Executor Have to Distribute Assets in California?
During the probate process, a court will determine if a valid will exists, who the beneficiaries are and how much the property is worth. The executor or administrator will need to take care of the financial responsibilities and transfer the decedent’s property. An executor will be appointed if there is a will, and an administrator will be appointed if there is no will. A case can take anywhere between nine months to 1.5 years. In some circumstances, the process can take even longer.
What Happens If an Executor Is Not Working in the Best Interest of the Estate?
An executor who avoids responsibility or does not work in the best interest of the estate could face potential liability. In California, an executor is held to strict fiduciary duty, meaning he or she should act as a reasonably prudent person would in a similar situation. The executor should act impartially and be fair and honest in his or her dealings.
If an executor is in breach of the fiduciary duty, this could lead to the imposition of the executor’s personal liability and significant damages. A petition for your removal would allege and provide evidence about you being unfit due to misconduct, incapacity or negligence. This petition is generally filed along with a petition that suggests another executor to be your replacement. According to California law, someone can also seek your removal as executor before you take detrimental action.
When handling an estate’s administration in California, an executor could face substantial risks. As a result, you should consult an estate planning attorney who can help you evaluate the legality of the actions you performed as the executor.
However, even if you act honestly and with good intentions, you may still be found to be running afoul of your fiduciary duty. If you are managing the estate assets, for example, and want to grow the assets via investment, you may decide to invest the assets in a high-reward, high-risk fund.
If this investment results in severe losses, you may be in violation of your fiduciary duty to act like a reasonably prudent person would, even if you did not engage in dishonesty. As a result of this, you may be held liable for these losses.
Contact Barulich Dugoni & Suttmann Law Group, Inc.
Estate planning requires careful consideration, evaluation of the risk and a comprehensive strategy. At Barulich Dugoni & Suttmann Law Group, Inc., we aim to understand the details of each of our clients’ situations before developing a strategy that incorporates innovative techniques, anticipates risk and focuses on the client’s goals. Since we were founded in 1989, we have earned a reputation across the nation in litigation and counseling, along with business planning, estate planning and tax planning.
Whether you are planning your estate or you are involved in a will or estate plan as a trustee, fiduciary or executor of an estate, an estate planning attorney from Barulich Dugoni & Suttmann Law Group, Inc. can provide the legal services you need. If you are seeking an estate planning attorney, contact us today.