If you are going through probate as an executor, you likely lost a loved one. As you navigate through your grief and loss, you also have various duties to manage in the probate process.
This can be overwhelming, to say the least. However, probate is necessary to handle a deceased person’s estate assets.
Though you have many responsibilities as an executor, did you know that there are several things you cannot do? You could face severe consequences if you take prohibited actions, even if it is just a mistake.
Understanding what an executor can and cannot do is essential to ensure you complete the probate process correctly.
Continue reading this guide to learn more about your duties as an executor and what you cannot do in this role.
Need help with probate? Have questions about being an executor? Contact Your Legacy Legal Care™ to schedule a strategy session.
An executor of an estate—or a personal representative—is the person who carries out a person’s will and manages their estate once they pass away. Typically, a person will appoint an executor in their will. If the decedent never named an executor, the courts will choose someone to be the executor.
As an executor, you will go through probate court and handle the decedent’s estate. This can be stressful, especially since you have lost a loved one, but it is your responsibility as an executor to administer the decedent’s estate. Contact our on-staff probate attorney if you have any questions about being an executor or going through probate.
The primary duty of an executor is to go through probate and to carry out the decedent’s will.
Going through probate means you will be involved in:
It is just as important to understand what you cannot do as an executor as it is to know what you can do. Remember that just because you are the executor does not mean you have complete control over the deceased person’s estate.
Here are five things an executor cannot do:
This may be self-explanatory, but you cannot carry out the will before the testator—the person who creates the will—passes away. The executor does not have rights to the estate before the testator dies. This also means that you cannot make financial decisions for the testator.
For a will to be valid, the testator must sign it (and have it notarized before two witnesses) before they pass away. If the decedent did not sign their will, they essentially died without one. As the executor, you do not have the right to sign the will on the decedent’s behalf.
Without a will, the decedent’s estate will be handled by the courts according to state intestacy laws.
If the decedent did not appoint an executor, interested parties could petition for probate to become the executor. This means you cannot start managing the estate until the courts assign you the executor role. In other words, you can only sell assets or complete other probate duties once the courts approve you.
One of the biggest questions people have is, can an executor decide who gets what? The simple answer is no. You cannot change any provisions in the will. In fact, it is your responsibility to follow the will exactly as the decedent created it. You have no power to add or take beneficiaries from the will or decide how much certain people get.
If the beneficiaries contest the will, you cannot prohibit them from doing so. Probate can become complicated if someone contests the will, but you do not have the right to stop anyone from doing this. A beneficiary’s right is to contest if they so choose.
As an executor of an estate, it is your fiduciary duty to manage the deceased person’s assets and go through probate. If you do not fulfill your executor responsibilities or do something prohibited, you could face various penalties.
For example, the courts could remove you as the executor. Suppose you violate the beneficiaries’ rights, steal from the estate, or commit other serious offenses. In that case, the beneficiaries could file a civil lawsuit against you. It is best practice to work with an experienced probate lawyer to ensure you complete your executor duties correctly.
Are you going through the probate process as an executor? Do you need help fulfilling your duties and ensuring you do not commit violations? Contact a probate attorney from Your Legacy Legal Care™ to get the help you need.
Call now at (281) 218-0880 to schedule your strategy session.
Kimberly Hegwood is the Managing Attorney of Your Legacy Legal Care, a Houston estate planning law firm. With more than 25 years of experience practicing law in Texas, she represents clients in a wide range of legal matters, including elder law, asset protection, estate planning, Medicaid crisis planning, probate, guardianship, and other estate planning practice areas.
Kimberly received her Juris Doctor from the South Texas College of Law and is a member of the State Bar of Texas.
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