How Long Does an Executor of a Will Have to Settle an Estate?

Can the Executor of a will take everything?

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Executor of a Will and their Duties.

Generally, the Executor of a will cannot take everything. Executors of a will are legally constrained by California Probate Codes and the terms of the Will. They must distribute assets as the Will directs. Moreover, this means that executors cannot overlook the asset distribution instructions within the Will and take everything for themselves. Obviously, there is one caveat to this statement: an executor of a will can capture everything if they are the sole beneficiary named in the Will; they can take the estate assets after paying debts and taxes.

To Answer the Simple Question: 

Can an executor of a will take everything?

No. An executor of a will cannot take everything unless they are the Will’s sole beneficiary.

How Long Does an Executor of a Will Have to Settle an Estate?

The Executor is charged with managing a deceased person’s estate throughout probate. Probate is the legal guidelines and processes defined by the State of California. Probate can take months or even years to complete, depending on the backlog of cases in the county and how complicated the estate is. In general, the Executor has as much time to settle an estate as necessary, as long as they meet all statutory deadlines along the way. Serving as an executor only entitles someone to receive an executor fee. Consequently, the executor fee will come from the estate funds. It is a legal entitlement to be paid for their time and effort as approved by the court and not an inheritance.

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Suppose you are a beneficiary and believe that the Executor is unnecessarily delaying the probate and wrongfully neglecting the estate. In that case, you should consult with an experienced probate lawyer as soon as possible. You may be able to have the Executor removed and replaced with someone willing to do the work needed to settle the estate and distribute your inheritance sooner.

What is an Executor of a Will?

The Executor of a Will is a Fiduciary to the Estate Beneficiaries and not necessarily a beneficiary. The Executor is the trusted person named in the Will to ensure all final wishes are brought to fruition. A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties, in this case, with the creator of the Will. Therefore, the Executor of a Will has the highest ethical standards needed. As a fiduciary, the Executor has a legal duty to act in the beneficiaries and the estate’s best interests and distribute the assets according to the Last Will and Testament.

Executor Duties and Deadlines:

An executor’s responsibilities include:

  • Petitioning the court to open probate.
  • Inventorying the estate assets.
  • Notifying any creditors and settling debts.
  • Paying taxes.
  • Distributing assets to Will’s beneficiaries.

The Executor often may need to consult with a probate attorney, accountants, and appraisers. Suppose they distribute estate assets to the beneficiaries before paying all debts and taxes. In that case, they may be personally liable to creditors. California does provide deadlines for the various steps in the probate process. The Executor’s first task is to institute probate proceedings by filing petitions to be appointed Executor and admit the estate. You must deliver the Will to the superior court within 30 days of learning of the death. If an executor is named in the Will, you must provide said Executor with a copy of the Will at the same time. California law says the personal representative must complete probate within one year from the appointment date unless they file a federal estate tax.

Can an executor take money from the bank?

As the legal fiduciary, the Executor of a will is authorized to transfer money from the decedent’s bank accounts. Notwithstanding, they are not legally permitted to transfer cash or withdraw cash from the account and deposit it into their own personal account.

The estate’s assets do not belong to the Executor. They belong to the estate. The sole job of the Executor is to manage the assets as the acting fiduciary. Even if the Executor is also a beneficiary, they cannot take funds directly from the decedent’s account as their “inheritance.” The estate must be closed by the probate court, and all funds to be distributed to beneficiaries upon court approval.

Can an executor sell the property of the estate?

Simply put, YES: The Executor can sell the estate’s property. However, there are some limitations.

California has a referee that will be appointed to appraise the estate’s assets. This includes personal property and real estate, as well as financial securities. Personal property can be sold for 90% or more of the appraised value without requiring court approval or the beneficiaries. While the Executor may not need permission from the heirs, executors should notify beneficiaries of the sale. An exception to this rule is that, when selling real estate, the Executor usually must receive approval from both the beneficiaries and the court.

Who can be the Executor of the estate?

California Probate Code allows for anyone who is 18 or over. Moreover, one has not been determined to be incapacitated by court order. Executors are often family members or close friends of the deceased. Still, some people prefer to name disinterested third parties as their executors to keep management out of the family to reduce inter-family disputes and friction. Additionally, there is no prohibition on beneficiaries of the will serving as executors. The Executor has a fiduciary duty to the estate and all of its beneficiaries. This usually does not cause any problems, despite the apparent conflict of interest. Just remember, as the Executor of the Will, your fiduciary duty requires your behavior to be above reproach. If not, you can and should be removed. See Below:

Can the Executor of an estate be changed?

Yes, an executor of an estate can be removed under certain circumstances in California. An executor has a fiduciary obligation to the estate and its beneficiaries as the estate administrator when making decisions concerning the preservation, distribution, or other management of the estate. It is anticipated that they’ll act honestly, fairly, and honorably and that they will honor the intentions of the deceased. The beneficiaries can inform the court if they believe that the Executor has broken their fiduciary obligation, such as concealing or mismanaging assets or neglecting to distribute them timely, stealing funds, or making poor investments. According to California State Probate Code §8502, an executor can be removed when:

They have wasted, embezzled, mismanaged, or committed fraud on the estate or are about to do so.

They are incapable of properly executing their duties or are otherwise not qualified for appointment.

They have wrongfully neglected the estate or have long failed to perform any duties.

The removal is necessary to protect the estate or interested persons.

There is another cause for removal under state statute.

For example, if a mother makes a will stating that her whole fortune should be given to a local charity. Still, the court is uninformed of her Will. The laws of intestate succession (dying without a will) would place a son, daughter, or spouse in the position of inheriting the estate. The son, daughter, or spouse chose not to register the Will because they wanted to profit financially from the estate despite the deceased’s intentions and not because they wanted to honor her wishes. This is a criminal offense, and an executor might face criminal charges. After the hearing, the judge can remove an executor if they agree there are grounds for removal.