As soon as one has created a last will and testament, the next important step is to find a reliable person to be your executor of trust. You must be wondering what power does an executor of a trust have? This person will have the legal responsibility of making sure that all the instructions listed on your last will are followed.
After your death, it will be your executor who will have to manage and sort out your finances. The responsibilities of an executor include paying any of your remaining debts and distributing your assets among your beneficiaries.
Despite the fact that the executor of your will is tasked with the responsibility of carrying out your wishes, however, it does not mean that they can do anything with your finances and assets. There are still some rules and regulations they have to follow and certain limitations on what they can and cannot do.
Let us head right into the article and see what you can and cannot ask your executor to do. This information can also aid you in making your choice regarding who you want to appoint for that position.
Can The Executor Of A Will Be A Beneficiary
Yes they can! An executor can be a recipient in a will. It is normal for young adults to be agents for their perished guardians, while additionally being a beneficiary. In spite of the fact that it is typically fitting to name beneficiaries as executors in these cases, challenges can emerge where just some of the beneficiaries are delegated as executors. In those cases, pressures can emerge during the organization of the bequest.
In situations where you are thinking about choosing young adults as recipients, it is not just astute to deliberately think about your own family dynamics, but also, more significantly, to contemplate the most ideal selection of executors and how likely they will be to “make the best decision”. While it is beyond the realm of imagination to expect to settle on ideal decisions in these cases, it is, at any rate, critical to contemplate the possible results of these decisions which can periodically get mind boggling.
While young adults who are beneficiaries, frequently have a personal stake in finishing a bequest expeditiously and despite normally having a decent possibility to become agents, there are still valid justifications to ponder this significant arrangement over, with the goal that your desires are appropriately regarded when the opportunity arrives.
Can The Executor Of A Will Take Everything
As far as the powers of an executor are concerned, and whether or not they can take everything, then let us make one thing clear, the powers of executor include, but are not restricted to the following:
- The executor can use the income of the estate to provide for the well being of young beneficiaries. The money is used for the benefit of the beneficiary, especially in cases where the testator has passed away, leaving behind young children as dependents. The executor can then use the testator’s income to look after the children and pay for their expenses, e.g. school fees.
- The executor can even invest the estate which can produce income that can be used for the betterment of the estate. However, since such an authority can lead to the executor violating his/her duties towards the beneficiaries, it has to be implemented with extreme caution.
- This executor also has the power to appoint professionals such as investment managers, probate attorneys, appraisers, accountants, real estate agents and stockbrokers to handle the estate.
- One of the very initial tasks that an executor must comply with is to identify and safeguard all estate assets. This can range anywhere between simply having a financial account closed or acquiring possession of real property and securing it.
- Any creditor of the estate can file in a claim. In such cases, the executor’s responsibility is to review those claims and either approve or deny them.
- The executor also has the authority to pay for claims that they have approved. These can be paid for with the help of the estate’s assets. Along with paying for claims, the executor also has to pay the bills submitted by professionals that were retained to help during the probate process.
- If a situation arises where someone challenges the decedent’s Will, or if somehow, for whatever reason, the estate gets entangled in a lawsuit, the executor possesses the power and the legal responsibility to defend the estate.
- There are times where the estate does not have enough liquid assets to pay all of its remaining claims and debts. In such situations, the executor has the power to sell the estate assets to raise the required funds.
- As soon as the probate process ends, the executor possesses the authority to draw up all the important legal documents that are required for the transfer of the remaining assets to the beneficiaries and/or heirs of the estate.
The executor may attract personal liability for breaching his duties, hence it is important for anyone who acts as executor to understand his/ her powers and duties properly in order to avoid dispute and liabilities, especially when the executorship is not remunerated.
Things Your Executor Can Do
In spite of the fact that this isn’t a thorough rundown, contingent upon the unpredictability of the departed benefactor’s money and family conditions, an executor regularly makes choices regarding:
- Handling the assets, properties and finances of the benefactor until they are divided among the beneficiaries
- Overlooking the division of the benefactor’s property and assets
- Managing concerns related to the inheritance of property and assets, including who inherits real estate, as stated in the will
- Authenticating the will in probate court if required
- Paying for debts, taxes, and other ongoing expenses
- The executor needs to act impartially for the benefits of all beneficiaries
- The executor needs to maintain a proper account of the estate, and be answerable to any reasonable questions made by the beneficiaries;
- The executor should proceed with caution when exercising the powers.
In simple words, the executor makes most of the decisions concerning the division of the estate. In spite of the fact that executors should adhere to the directions in the will of the deceased, here and there they do have the ability to settle on specific choices. In the event that the deceased benefactor didn’t communicate their desires clearly, or at all in their will, at that point the executor may need to settle on certain choices on behalf of the benefactor. Remember that the executor can also refuse to act regardless of whether or not they are named in the will. In these cases, the court can name another agent.
Things Your Executor Can’t Do
An executor has an obligation as a guardian to execute your will as best as they can and as per the law. Yet, while picking an executor, it very well may be hard to decide the restrictions of their authority. Notwithstanding, here are a few things that an executor cannot do:
- Modify, change or alter the beneficiaries in the will
- Stop the beneficiaries from challenging the will
- Sign the will on behalf of the benefactor (if the will was not signed before the benefactor died)
- Bring the will into execution before the death of the benefactor
- Following instructions from one certain beneficiary to harm the others
- The executor’s own interests should not be in conflict with those of the beneficiaries
- The executor should not benefit personally from the administration
If the beneficiaries of an individual’s last will feel that an executor is not living up to their duties and responsibilities, they can get the court involved. The executor can even be removed. In such cases, it is usually the court that takes care of the executor’s duties rather than appointing a new executor.
Duties Of An Executor
We have already mentioned above a few powers and authorities that are vested in an executor by the law and most importantly by the benefactor. These responsibilities cannot be violated by the executor unless they want to have various trips to the court. Therefore, we have listed down some of the main duties of an executor.
- Get a copy of the will and file it with the local probate court
- Notify banks, credit card companies, and government agencies of the benefactor’s demise
- Decide what kind of probate is important
- Represent the estate in court
- Set up a bank account for incoming funds, and pay any remaining or ongoing bills
- File an inventory with the court of the state’s funds
- Handle and maintain the property and assets until they are distributed or sold
- Pay the debts and taxes of the estate
- Divide assets according to the will
- Dispose off other property
What To Do If An Executor Does Not Follow The Will
If for some reason you think that the executor is not following the directions given in the will, you have the right to take legal action. If you have not yet started with the probate proceedings, you can always file a petition in the court to administer the estate. There are two fundamental ways through which you can deal with an executor who you think is not following the will:
- Require the Executor to Act: Beneficiaries can appeal to the court to ask the executor to take, or forgo, a particular activity. To show when this might be proper, envision that an agent is stalling and not concluding the bequest. In the event that they have no substantial purpose behind this postponement, the influenced recipients have the power to prosecute them. A Texas court could drive the agent to make a move and to finish the domain.
- Remove the Executor: You may likewise have the option to constrain the removal of an executor . In Texas, agents can be taken out for various reasons. As an overall issue, the beneficiary who is petitioning to get them eliminated from supervising the overlooking of the will must have the option to demonstrate that the executor is not, would not, or cannot satisfy their most fundamental lawful obligations. This obviously is a more extreme approach than attempting to drive activity. In any case, the expulsion of an executor might be better for your situation, especially in the event that you accept that the executor is committing fraud, is abusing reserves, or is in any case botching the estate.
Conclusion
Keeping all of the above mentioned factors in mind, you should carefully consider who you want to appoint as your executor before you make a will. You also need to think about whether or not you want to mention the rights, powers and responsibilities of the executor in the will. Moreover, it is always a good idea if you have a professional draft your will for you so as to prevent any confusions concerning the rights and duties of the executor.
Executors who are chosen ought to be completely mindful of their authority and obligations before consenting to take on the job, else they will be denied the privilege of executorship. The advantages of designating experts as agents is to have somebody who has adequate information and involvement with taking care of domain organization, subsequently guaranteeing an additional layer of security to the beneficiaries, particularly the individuals who can’t protect their own interests and benefits, for example, minors or with individuals with disabilities.
It is true that being an executor can require a lot of work, therefore it is important to appoint as an executor, someone that you trust. Moreover you need to discuss your wishes with them to ensure they are up to the task. Furthermore your last will and testament should mention as many details as possible. If in any case your executor is unable to complete their duties and the court has to take over, at least the execution of your will can still go relatively smoothly.