What An Executor Cannot Do
When a person dies, their belongings, money, and property need to be distributed to their heirs. Often this happens through the probate process, more commonly referred to as probate. Throughout probate, the executor is the person who is given the responsibility of distributing the deceased’s belongings to their heirs to make sure they get their inheritance.
While the executor has certain powers, there are things that an executor cannot do. If you are in the process of writing a Will, or if you just had a loved one recently pass away and you are going through probate, it is important to understand the duties of an executor and what an executor cannot do.
The Probate Process Explained
When a person dies, their debts need to be paid, and their remaining money and belongings must be distributed to their heirs. If the deceased didn’t have the right legal documents, their estate will need to go through probate.
Probate is simply the public court process that ensures a person’s debts are paid, and their money and property are given to their heirs according to their Will or state law. The executor, known as the personal representative in some states, is the person who has the legal authority to settle the deceased person’s estate. In the next section, we will discuss what an executor cannot do.
What An Executor Cannot Do
An executor has a fiduciary duty to the beneficiaries of the estate. This means that an executor cannot do anything that hurts the interest of the beneficiaries.
An Executor cannot do the following:
An Executor Cannot Carry Out The Will Before The Creator Dies
The executor and the beneficiaries are not entitled to any piece of the estate until the decedent passes away. This means that even though you may be named in the Will, you can’t start making financial decisions until the person who wrote the Will passes away.
To begin the probate process, the executor may need to do some initial digging to determine what is in the estate. However, the executor cannot do things like selling assets or paying debts until the court has approved the petition for probate and formally recognized the executor.
An Executor Cannot Sign A Will On Behalf Of The Deceased
If a person dies and they did not have a signed Will, they do not have a Will. One thing an executor cannot do is sign a Will on behalf of a person who passed away. Instead, the estate will need to be settled according to the intestacy laws of the state where the deceased was living or where they owned property at the time of their death.
What An Executor Cannot Do Is Sell Assets For Less Than Fair Market Value
Another thing an executor cannot do is sell the estate’s assets for less than fair market value. That’s because the executor has a fiduciary duty to ensure that the beneficiaries receive their inheritance according to the Will or the state’s intestacy laws. So, for example, selling off assets for less than fair market value to friends, family members, or to themselves is in opposition to the fiduciary duty and is something that the executor cannot do.
An Executor Can’t Change Any Provisions In A Will
In addition to not being able to sign a Will, the executor cannot change any provisions in the will. For example, an executor cannot add beneficiaries to the Will. If a family member feels like they were left out of the will, they can file a petition with the probate court to contest the Will. However, changing the Will itself is something an executor cannot do.
An Executor Has No Power To Stop Beneficiaries From Contesting A Will
Sometimes probate can get messy when beneficiaries or heirs contest the decedent’s Will. However, this is their right and attempting to stop a Will contest is something an executor cannot do.
What Can An Executor Do?
Now that we have talked about what an executor cannot do let’s discuss what an executor CAN do. Once the executor has been granted the authority to manage the estate by the probate court, they have certain responsibilities they need to do according to the Will and state law.
The Executor Needs To Secure The Estate
Securing the estate is something the executor can do and should do as soon as the probate court formally appoints them. This might require the executor to locate all of the assets in the estate, secure keys to properties, and make sure that any businesses are being managed. It’s also important that the executor notify the heirs that the estate is currently being probated.
An Executor Can Pay Off Debts
Executors can notify creditors that the decedent has passed away. This typically happens earlier on in the probate process. This task varies from state to state based on known and unknown creditors. Some states require sending a letter to known creditors, publishing in the local newspaper, or publishing a notice for a specific period of time.
As the executor receives notice of the debt, they must pay them before distributing any part of the estate. The Letters of Authority give them legal authority over the estate and allows them to access the decedent’s bank account to make any payments to creditors.
The executor is also responsible for filing an estate tax return as well as paying any federal or state taxes owed. The executor is also responsible for tracking all payments made on behalf of the estate and must keep an accounting which is typically filed with the probate court. If the home needs to be sold through a probate sale in order to cover any debts, the executor is responsible for the sale. Lastly, they also need to pay any funeral expenses and back owed income taxes.
An Executor Must Inventory The Estate’s Assets
During the probate, the executor is responsible for taking an inventory of all assets.
Some items that you will have to take inventory of are:
- Bank accounts or investment accounts
- Retirement accounts
- Real estate
- Personal property
If an estate has many assets, then the inventory could take a few hours to create. This is especially true if you have to determine the market value of each asset. It is also up to the executor to determine what assets must go through probate and which assets have a beneficiary listed. For example, if your loved one passed away and you were named as the beneficiary of their bank account, then the executor would not list the bank account in the inventory.
States typically have a specific deadline for when the inventory must be filed, so it is best to check with the probate court for your deadline.
An Executor Can Distribute The Estate
An executor can distribute the estate to all heirs or beneficiaries once all of the decedent’s debts have been paid. This may include transferring a title to someone. For example, a home, vehicle, or other estate property.
It is also the executor’s responsibility to keep detailed records of all funds coming in and out of the estate, as well as any other information that will affect the estate funds. Depending on the type of probate case, this part of the process may require probate court approval. Once this is completed and the estate is distributed, the estate is ready to close. Once the estate is closed, the job of the executor is complete.
Keep Accurate Records Of The Estate
It’s important for the executor to keep all records of how much time they spend on estate work and other executor responsibilities. Then, the executor can be repaid from estate funds for their time spent as well as any expenses that they may have paid out of their own pocket.
On some occasions, a decedent’s Will may specify that the executor is compensated for their work. However, this can always be changed by the probate court. For example, if someone created a Will many years before they passed away, the amount they listed in the Will for the executor to receive may not be enough compensation based on today’s standards.
Who Can Be Chosen To Be The Executor Of An Estate?
Typically, an executor is named in the decedent’s Will. In most cases, this person is typically the person’s spouse, child, or sibling. On the other hand, if the person didn’t have any family members, then an attorney or someone else may serve as executor. On occasion, someone may not wish to serve as an executor, and someone else may take their place.
If the decedent didn’t have a Will, then the court decides who will be the executor. In most cases, someone comes forward and requests to be appointed as executor in the probate court. In all cases, the court must approve who the executor is and provide them with Letters of Authority that proves they have the legal authority to act on behalf of the estate.
Who Is Typically Selected To Be Executor?
Oftentimes the executor is a family member like a spouse, adult child, or sibling, although it does not necessarily have to be. If the decedent did not have a family member who is able to undertake the task, a friend may be appointed.
Can A Beneficiary Be An Executor?
It is not uncommon for the executor to be one of the heirs or beneficiaries. Sometimes the surviving spouse acts as the executor if they are of sound mental and emotional ability. It is also common for one of the adult children or a sibling to become executor of the estate.
Do I Need A Probate Lawyer To Help Me With The Probate Process?
If you need to go through the Probate Process, it is recommended that you work with an experienced Michigan Probate Lawyer.
The Probate process in Michigan can be complicated, long, and confusing.
An attorney can help you quickly and easily navigate the process so that your loved one’s money and property can be distributed to their heirs in the manner in which they intended.
At Rochester Law Center, our compassionate and dedicated Michigan Probate Lawyers are experienced in all matters of Probate Administration and serve every county in the state of Michigan.
We make Probate fast, easy, and stress free by acting as your guide through the complicated paperwork and legal proceedings you’ll undoubtedly be facing throughout the Michigan probate process.
We understand the intricacies and nuances involved with Probating an Estate and can help you navigate every step of the way while keeping costs as low as possible.
Call us today at (248) 613-0007 for a free case evaluation.