Executors play a critical role in administering the estate of a deceased person (known as the decedent). However, not everyone who is named an executor fully understands his or her rights and obligations. Knowing an executor’s rights and duties will help ensure that you carry out the responsibilities expected of you during the probate process.
It’s not easy serving as an executor, which is why the attorneys of Loew Law Group are here to help. We have extensive experience with all matters of California estate and probate law. If you’ve been named as an executor in a will and have questions, or if you are ready to take the next steps to be appointed and administer the estate, turn to us.
Before You Begin
Even if you are named the executor in the decedent’s will, the probate court must issue letters testamentary, which grant you the legal right to act as the executor. That means a couple of things. First, you should not act in any capacity as an executor until the court appoints you. Second, you have the right to decline the nomination if you are unable or unwilling to serve as the executor. Most individuals so named will carry out this duty. But if you have any reservations or questions, talk to a California estate planning attorney.
You may be entitled to be appointed as executor even if you’re not named in the decedent’s will. The surviving spouse or children of a decedent, for example, may file a petition to be appointed if there is no executor named in the will, or if the named executor is unable or unwilling to serve in that role. Other persons with an interest in the estate, and even creditors of the decedent, may sometimes petition to be appointed.
Once the court appoints you as executor, the court may refer to you sometimes as a personal representative, or as an administrator of the estate. But all of these terms may be used to refer to the person who has been appointed to administer the estate.
If you become a court-appointed executor, and later decide you cannot (or do not want to) serve, you have the right to resign. But just as you cannot start acting as an executor until the court says so, your fiduciary duties remain binding until the court discharges you.
Executor’s Rights With Respect To Estate Property
The executor has a great deal of latitude in carrying out his or her duties in accordance with the decedent’s wishes. Once the testator (the person who made the will) dies, and the executor has been appointed by the court, the work begins.
The first step, once you have been appointed by the court, is to take control of the estate’s properties and other assets. Only the court-appointed executor has the right to do this. The executor must protect these assets to prevent theft, vandalism, and waste, and they have to be titled to the executor. Beneficiaries may try to control property that is within the purview of the executor. It is vital that the executor exercises this right without the interference of any individuals who are not authorized to do so.
This power must be exercised with an eye towards the executor’s fiduciary duties; that is, the obligation to act with the estate’s best interests in mind. If there is real property, you need to remove anyone from the premises who has no right to be there and obtain insurance for it. If that property is rented, you need to ensure the tenants continue paying their rent. If there are high-risk stocks assets in the estate, they may need to be liquidated to prevent losses. You should check with an experienced California probate attorney if you have questions about how to properly exercise these rights and responsibilities, and before taking any significant actions concerning the estate assets.
The executor also has the right to sell estate property or assets to cover taxes, fees, debts, and the costs of administering the estate. There are two methods from which the executor may choose:
Court approval. The executor can obtain court approval to sell an asset or property. This applies to stocks, bonds, real property, and more. Before selling real property, a hearing needs to be held first.
Rights pursuant to the Independent Administration of Estates Act (IAEA). The executor can request that the court grant him or her full powers under the IAEA, a law designed to streamline probate. These powers may be requested from the court when the individual petitions the court to become the executor, or it can be done later. The will itself may also authorize this request. Having full powers under the IAEA allows the executor to sell real estate, for example, without a prior court order.
There are still requirements that must be fulfilled, such as giving a Notice of Proposed Action to any beneficiary or other party who may be affected by selling an asset. IAEA powers can also be limited, and beneficiaries may object to decisions made by the executor. Consult a California probate lawyer to understand the full extent of your rights and obligations under the IAEA.
Executor’s Rights With Respect To Creditors
One of the most important duties the executor will have is to notify the decedent’s creditors about the probate. This allows the creditors to file claims against the estate, which they generally have 60 days to do.
Once a creditor files a claim against the estate, the executor has the right to either pay it, compromise it, or contest it. Contesting a creditor’s claims is significant because the estate assets cannot be distributed to the beneficiaries until these claims are resolved. The executor may dispute the claim if he or she believes the debt is not valid or enforceable.
Executor’s Rights To Defend And Close The Estate
If the estate is sued, the executor has the right to defend it in litigation. If the decedent’s estate had a legal claim against a third party, the executor may also initiate legal proceedings on the estate’s behalf. The executor will likely need attorneys and other professionals to assist with this process. The executor can hire these individuals and pay their reasonable fees, though generally, the payments must wait until the court approves them.
Once all of the probate work is concluded, the executor has the right to close the estate. A court order must be obtained authorizing any fees (such as attorney fees) to be paid and permitting the assets to be distributed to the beneficiaries. This is accomplished by filing a final petition with the probate court.
Contact Our San Mateo Executor’s Rights Attorney
The probate process is much more complicated than the outline above. Although being an executor is no simple task, most named individuals are willing to serve in this capacity to honor the memory of the deceased. Let Loew Law Group be a part of that legacy. If you’ve been named an executor and want a better understanding of your rights and duties, call us today to schedule a consultation with our probate attorneys.