While California law grants executors considerable authority in managing estate assets, the powers of an executor of a will are limited by the fiduciary duties owed to the estate and its beneficiaries. This means that executors are legally required to act in the best interests of the estate and its beneficiaries.
Before an executor can provide any funds to a beneficiary, they have to ensure that all the deceased's bills, taxes, and estate administration expenses are paid. The executor must notify any known creditors of the death so those creditors can make a claim against the estate.
No. An executor of a will cannot take everything unless they are the will's sole beneficiary. An executor is a fiduciary to the estate beneficiaries, not necessarily a beneficiary. Serving as an executor only entitles someone to receive an executor fee.
With an estate account, you can't simply withdraw money. You need to submit a claim to the court that explains what you want to withdraw and what you're using it for. That protects the beneficiaries since you can only use this money to pay approved expenses.
There is no law that prohibits an executor from asking the bank for the money. The executor's get their legal authority from being named in the will, not from probate. It is not illegal for the executor to ask the bank for the money, but there is no legal obligation on the bank to provide it prior to probate.
There are limits on what an executor can and cannot do. If you've been named an executor, a couple basic rules of thumb are that you can't do anything that disregards the provisions in the will, and you can't act against the interests of any of the beneficiaries.
Can beneficiaries override an executor? Generally, no, beneficiaries cannot override an executor unless the executor fails to follow the will, breaches their fiduciary duty, or the beneficiaries obtain an order from the probate court instructing the executor to take action the executor had resisted.
The executor is entitled to 5% of the first $200,000 of corpus; 3.5% of the excess over $200,000 up to $1,000,000; and 2% of the excess of the corpus over $1,000,000. From a practical standpoint, using my example of a $400,000 estate, my hypothetical executor would be entitled to a commission of $17,000.
Timeline for Settling Estates in California
The courts take steps to move the process along, and the executor of an estate generally has 12 months to complete the probate process and pay heirs or beneficiaries from the estate. This payout can only happen once all debts have been paid.
The executor of a will can take everything only if they are the sole beneficiary of a decedent's estate and all of the decedent's debts have been paid.
No, an executor cannot decide who inherits from your will. Their job is to follow your wishes and distribute your estate to the beneficiaries according to the terms of your will. Executors manage the assets, pay debts, and keep records, but ultimately act as a facilitator to ensure your will is carried out.
California has one of the most detailed schemes, which provides that the executor fee is four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent on the next $9 million, one-half of one percent on the next $15 million, and a “reasonable amount" ...
No. Typically, an executor cannot arbitrarily decide who receives which property.
The root of a potential executor conflict of interest lies in the role itself. Since the executor has power over an estate, and beneficiaries stand to receive inheritances from the estate, it's easy to see why beneficiaries may not be comfortable with the arrangement.
The executor has authority from the county probate court to act in this role, but that doesn't necessarily mean that the executor has the final say on all decisions regarding the estate. In fact, they're instead tasked with simply following the guidelines set forth by the will and other estate planning documents.
All personal representatives must include fees paid to them from an estate in their gross income. If you aren't in the trade or business of being an executor (for instance, you are the executor of a friend's or relative's estate), report these fees on your Schedule 1 (Form 1040), line 8.
As executor, it is your responsibility to locate the original will and submit it for probate. It is a good idea to get it now and make sure you are keeping it in a safe place.
According to California Probate Code section 10800, the following is the statutory fee structure for personal representatives in California; 4% on the initial 100,000 dollars. 3% on the subsequent 100,000 dollars. 2% on the following 800,000 dollars.
As noted in the previous section, an executor cannot change a will. This means the beneficiaries who are named in a will are there to stay. Put simply, they cannot be removed, no matter how difficult or belligerent they are being with the executor.
Vulnerabilities of Inheritances to Lawsuits. Sadly, the answer to the question, “Can your inheritance be at risk of a lawsuit?” is “yes.” If you and your family members aren't careful, you may risk losing some or all of an inheritance during a legal battle.
Yes. My experience has been that you must give every beneficiary the same amount of advance. Yes, they MUST sign the Receipt, Release and Indemnity.
Can your executor take money from the estate? The executor is not the owner of the estate, meaning they do not have rights to the assets within the estate. They are however permitted to be paid for their duties. This does not mean they are free to take whatever sum of money they wish from the estate account.
If you are a beneficiary and feel like the executor is not fulfilling the duties of the job correctly, you may ask the court to remove and replace the executor.