To be nominated to be the Executor of a Will imposes upon the person so appointed a fiduciary duty to adhere to the terms of the Will in conformity with California law. That duty can impose personality liability upon the Executor should he or she fail to perform as required.
Q: Can an Executor Withhold Money From a Beneficiary in California? A: Executors do not have the authority to act outside the guidelines stipulated in the will. An executor cannot withhold money from a beneficiary unless they are directed to do so through a will or another court-enforceable document.
An executor's neglect in fulfilling financial obligations constitutes executor misconduct. This neglect can manifest in the executor's failure to appropriately pay any existing debts and taxes of the estate in a timely manner.
A trust will allow you to achieve multiple objectives that will cannot. That said, these benefits may come at a price. Whether setting up a living trust is better than writing a will depends on the additional benefits and whether they outweigh the costs.
Edsel Murphy's Law - Anything That Can Go Wrong, Will Go Wrong - Murphy's General Law as Applied to Program Evaluation | Office of Justice Programs.
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.
While executors have discretion in some areas, your core decision-making is bounded by: The deceased's will. You must follow their distribution wishes rather than diverging based on your own judgments.
Executors are bound to the terms of the will, which means they are not permitted to change beneficiaries. The beneficiaries who were named by the decedent will remain beneficiaries so long as the portions of the will in which they appear are not invalidated through a successful will contest.
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.
Keep detailed records of all communication, transactions and activities related to the probate process. This may include emails, letters, financial statements and other relevant documents that may serve as evidence when proving executor misconduct.
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.
Be sure that all debts, taxes, and expenses are paid or provided for before distributing any property to beneficiaries because you may be held personally liable if insufficient assets do not remain to meet estate expenses.
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.
As an executor, you must provide a formal accounting at least once a year, but beneficiaries can request an informal probate accounting in California at any time. When they do, you must produce it.
If an executor is ignoring you, they are in violation of their fiduciary duties. You should hire a qualified lawyer as soon as possible to try and turn the situation around. Something else beneficiaries can do to avoid being ignored by the executor is to play an active role in administration.
Beneficiary Rights and Accounting
According to California Probate Code section 10950, if more than a year has passed since the beginning of probate administration and an accounting has not been filed, interested parties are entitled to file a petition with the court to make the executor to complete an accounting.
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.
If you're wondering whether an executor can override a beneficiary, you're asking the wrong question. An executor can't override what's in a Will. If you're a beneficiary mentioned in someone's Will, the executor can't cut you from the Will after the testator has died. You still have rights to the estate as written.
It depends. If most of a decedent's estate is put into a trust, then the trustee of the trust would have more power. If by power you mean the capacity to distribute the decedent's estate. Generally, this tends to be the case if a person creates a trust and a will during their lifetime.
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.
Common law has identified three different types of mistake in contract: the 'unilateral mistake', the 'mutual mistake', and the 'common mistake'. The distinction between the 'common mistake' and the 'mutual mistake' is important.
The Golden Rule is the principle of treating others as one would want to be treated by them. It is sometimes called an ethics of reciprocity, meaning that you should reciprocate to others how you would like them to treat you (not necessarily how they actually treat you).
Murphy's general laws
Everything takes longer than you think. Anything that can go wrong will go wrong. If there is a possibility of several things going wrong, the one that will cause the most damage will be the one to go wrong.