What Is an Executor Not Allowed to Do?

Executors have a fiduciary duty to act in the best interest of the estate and its beneficiaries.
Roberta Pescow
By Roberta Pescow 
Updated
Edited by Tina Orem

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An executor isn't allowed to act in a way that financially harms an estate or its beneficiaries. Prohibited behavior can include theft, forgery, secrecy, negligence and self-dealing. An executor must always act in the best interests of the estate and its beneficiaries.

What kind of things aren’t executors allowed to do?

Executors are given a great deal of power and responsibility over an estate; however, there are some specific actions they’re not allowed to take.

  • Stealing from the estate. Using estate funds for personal use, selling estate assets to themselves for a discounted price, keeping money collected from estate rental properties and all other estate thefts are a breach of fiduciary duty.

  • Carrying out the will before the creator dies. Even if the person who made the will is very ill, the executor can’t start distributing estate assets to beneficiaries while the will’s creator is still alive.

  • Signing a will for the deceased. If the will creator fails to sign the will before dying, the estate will be settled in accordance with the state’s intestacy laws.

  • Disregarding or changing the will’s instructions. An executor cannot decide who gets what. The executor can’t distribute assets in a way that contradicts the will. They cannot add or remove any beneficiaries.

  • Failing to notify and communicate with all beneficiaries and heirs. An executor is required to let all beneficiaries and heirs know that the will creator died, as well as provide each of them with a copy of the will and keep them all informed about how the probate process is progressing.

  • Selling off assets for less than fair-market value without agreement of all beneficiaries. Doing this would violate the fiduciary duty of an executor.

  • Ignoring taxes and debts. The executor must pay the estate’s taxes and debts before distributing assets to beneficiaries

    Cornell Law School Legal Information Institute. 26 CFR § 20.2002-1 - Liability for payment of tax. Accessed Sep 6, 2023.
    .

  • Mismanaging/neglecting estate property. Executors can’t fail to maintain real estate property so that it deteriorates and loses value. They also cannot make irresponsible investments with financial assets that would cause those assets to lose value.

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How can I make sure an executor is being honest?

There’s no foolproof way to be sure a will executor is acting honestly and honorably, but there are some important red flags to watch out for if you’re an interested party in a will.

  • A lack of transparency/communication. If the executor hasn’t notified you about the death or shown you the will within a reasonable amount of time — or if they aren't keeping you in the loop about how probate is going, this may signal a lack of honesty on the executor’s part. If the executor refuses to share information when asked, this is also a red flag.

  • Your inheritance is withheld or delayed. Probate takes time, but if it seems like more than a reasonable period has elapsed and you still haven’t seen your inheritance, this may be cause for concern, particularly if other beneficiaries have received their inheritance and/or if your relationship with the executor is strained.

  • Estate assets are being sold off for prices below market value. Because this contradicts the fiduciary duty of an executor, this is always a red flag.

  • Insurance lapses on valuable estate assets or properties are poorly maintained. This also shows a breach of fiduciary duty.

  • Estate inventory is delinquent. If the executor fails to create an estate inventory, this may indicate a lack of honesty.

What can I do if I think an executor is being dishonest?

If you’re a beneficiary in a will and you believe the executor isn’t being honest or timely, you have options. You may want to start by reaching out to the executor to make sure the issue isn’t a simple miscommunication — or that delays are because the executor is grieving and/or overwhelmed.

If the direct approach isn’t successful, you have the right to take legal action by filing a petition in court. Depending on the situation and the specific state laws, you might ask the court to do the following:

  • Request an accounting. The court can ask the executor to provide an accurate, detailed accounting of estate assets and expenses paid by the estate.

  • Require a bond. You may be able to petition the court to require the executor to post a bond, which works like a temporary insurance policy. If the executor steals from the estate or handles it badly, the bond funds would repay the estate.

  • Surcharge the executor. If the court determines that the executor has been stealing from the estate, it can impose a surcharge on the executor to repay these funds. 

  • Reverse a dishonest transaction. If the executor has stolen from the estate, you may be able to file a Discovery and Turnover petition to reverse the dishonest transaction and return stolen assets to the estate.

  • Reduce or deny executor compensation. If the executor isn’t acting properly, the court can reduce or entirely deny compensation for this role.

  • Remove the executor. If the court finds that the executor hasn’t been following the will, has been stealing from the estate or in any other way not performing their fiduciary duty, it can remove the executor and appoint a successor executor.

  • File criminal charges. If the wrong actions of the executor are extremely severe, such as theft or fraud, they may face criminal charges as well as possible fines, probation or jail time.

How can I protect myself as an executor?

If you’ve been appointed executor of an estate, here are some important ways to protect yourself against conflicts, confrontations and legal challenges.

  • Follow the will carefully. If every action you take is following the written wishes of the deceased to the letter, this leaves little room for legal challenges.

  • Be transparent. Notify all beneficiaries and interested parties immediately about the death, make a copy of the will available to all of them and update them regularly about how probate is progressing

    American Bar Association. Guidelines for Individual Executors & Trustees. Accessed Sep 6, 2023.
    .

  • Keep impeccable records. Document every financial transaction and maintenance action you perform for the estate in detail. You may even want to get a receipt book and have heirs sign for the inheritances they receive to avoid being accused of not paying everyone their due.

  • Secure estate property quickly. Secure and inventory all estate property such as jewelry and other family heirlooms as soon as possible to make sure everything is accounted for and safe from theft.

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