After someone passes away, the ticking clock of probate begins, which is the court-supervised process of distributing someone’s stuff..
And when drafting an estate plan and/or will, the person who made the will, called the testator, will often name the person they’d like to handle the affairs of their estate after they die — i.e. manage probate and estate settlement. This person is referred to as an executor, executrix, or personal representative.
In a perfect world, probate is a lot of work but still feels relatively straightforward, but… sometimes things get messy. Beneficiaries can argue over what versions of a will are valid, who deserves what, and all kinds of other things.
The question, “can the executor of a will take everything” isn’t an optimistic one. It usually means some sort of dispute is brewing, but even if there isn’t one, it can be helpful to know the relative powers of the executor.
Here’s what you need to know, and if you’re still wrapping your head around probate in general, this breakdown has your back.
Can the executor of a will take everything?
Simply put, no — an executor of a will cannot take everything in an estate, unless they are the solely-named beneficiary of the testamentary instrument (such as the will).
And if they are not mentioned in the will at all as a beneficiary, then they will not get everything — they will actually get nothing from the estate except for the court-approved executor’s fee.
The role of the executor is to distribute the contents of the testator’s will as the testator wrote down as well as settle debts, expenses, and other costs associated with closing down the estate.
Here are the powers & responsibilities a typical executor or personal representative has:
- Distribute assets according to the decedent's will
- Validate the will in probate, if necessary
- File an accounting of property and assets of the estate
- Hire a lawyer to assist with estate administration
- Gather and organize estate assets and properties to sell or distribute to heirs
- Supervise the distribution of the testator’s property and assets
- Pay estate debts, taxes, and other expenses
- Sell any properties
Executors have a fiduciary duty to carry out distributions according to the deceased’s will and not by their own determinations.
In general, the executor is responsible for carrying out a testator’s will, gathering and managing assets, transferring those assets to individuals or institutions as specified in the will, paying off the testator’s debts, filing tax returns, handling funeral and burial costs, clearing out any property that may be listed for sale, and distributing the estate’s property and cash according to the testator’s wishes in the will.
(if you think that’s a lot of responsibility… well, it is. But there are ways to make it easier).
The executor also has to navigate distributing the non-probate assets (such as trusts) as part of their duties managing the testator’s estate.
Read more: What is Probate? The Beginner’s Guide
And here are things an executor or personal representative cannot do:
- Sign the will on behalf of the testator either before of after they die
- Change beneficiaries in the will
- Execute the will before the testator passes away
- Stop beneficiaries from contesting the will
- Take property or assets from the will, unless the will specifies and by court order
In some cases, the executor of the will is also the sole beneficiary. Even then, the executor has to wait to receive their inheritance due to the probate process. All the creditors, debtors, and other priority bills must be paid first, and the court must approve the petition before the beneficiary receives any estate assets.
In other words, unless no one else is mentioned in the will, then maybe an executor could “take everything” — but even then they are only privy to the assets that are left after taxes and debts are paid.
While the executor has some discretion to distribute or liquidate estate assets, they have a fiduciary duty to the testator, meaning that they must hold the best interest of the deceased person’s will and beneficiaries in mind ahead of their own interests.
For example, the debts of the deceased may force the executor to sell the deceased’s home, but they have a fiduciary duty to get the most out of the home and use that asset in the best interest of the estate.
Can an executor of a will take all the money?
No, an executor cannot arbitrarily take money out of the testator’s estate because they have a fiduciary duty to distribute the money according to the testator’s wishes.
The estate money belongs to the estate as well as any creditors, debtors, and beneficiaries — not the executor.
Before the executor can distribute property, cash, and other assets from the estate to the beneficiaries, they must first settle the outstanding debts, expenses, and taxes from the decedent as well as any probate and estate costs, including the executor fee.
Can an executor get in trouble?
If the executor of the will improperly takes money out of the estate, they can be in some serious legal trouble. In legalese, they breached their fiduciary duty to the testator, which means that they failed to follow the contents of the will as to how the money and property was supposed to be distributed.
Executors who improperly carried out their duties by ignoring the contents of the will can be suspended, removed, or surcharged, which is a court order for damages caused by their improper actions to the estate.
The executor can be ordered by the court to repay all the stolen assets and any stolen property from the estate. If the executor’s actions are extremely improper, such as stealing all the estate assets for themselves when the will stipulates a specific allocation, an executor can even be charged criminally.
However, if the executor is also a beneficiary of the will, then they can take the money that is allocated to them as specified in the will. The executor must abide by the contents to the will.
What does an executor get paid?
Executors are entitled to an executor fee, which comes from the estate funds that is approved by the probate court, and/or set out in the will.
The executor is working on behalf of the estate, so they are entitled to an executor fee by law. Probate codes vary by state, but executor fees can be based on a percentage of the value of the estate, or a flat rate fee, or an hourly rate. When the executor fee is based on a percentage, the rate is usually tiered based on the value of the estate, such as 4% of the first $100,000, 3% of the next $100,000 and so on. Typically, the fee arrangement is determined by the will, but if the will is silent, then state law applies.
Also, keep in mind that if the executor has to perform “extraordinary duties,” such as handling litigation or business interests of the decedent, then they are entitled to compensation from the estate. Executors may have to get court approval before being compensated by the estate for these “extraordinary duty” expenses. Executors can waive their compensation from the estate, especially if they are a beneficiary and may want to avoid any disputes with their familial co-beneficiaries.
Can an executor decide who gets what specific property and assets?
Usually, the executor’s role in the probate process is to allocate the testator’s property and monies according to the specific contents of the will as well as pay off the testator’s bills. They cannot arbitrarily decide who gets what estate property or assets. In some cases, they do have some discretion to distribute the estate, but that power must be explicitly stated in the will.
Beneficiaries of the will can get pushy when they want their inheritance, because they often want it soon after the testator dies. The thing is, the executor has to diligently ensure the estate is allocated properly. An executor can even (although rarely) override a beneficiary when the beneficiary disagrees with the distribution of the estate, known as contesting the will. That’s when courts get involved.
Again, certain creditors, debtors, and other expenses have to be paid first before anyone else. This process has to be done correctly and cannot be rushed. Executors can be held personally liable for mistakes, so they have to be diligent that the right bills get paid.
Notable Exceptions to Know
There are some situations, although not typical, where the testator wrote the will declaring that the executor can decide how to distribute the estate assets to the beneficiaries.
Also, the will may give the executor some discretion on how to make disbursements to beneficiaries, such as selling certain property to raise cash to pay the beneficiary their allocated amount under the will.
The Bottom Line
While the executor has some discretion and powers to distribute the properties and assets of the estate as well as being entitled to a fee, they cannot arbitrarily take money or distribute the estate as they like.
Settling an estate can be a messy process, especially if a dispute arises or the executor abuses their authority, so please keep in mind that this is general information and will not necessarily explain all of the details you need to make the correct decision.
If you think the executor of the will is not acting properly under the law, then it might be a good idea to contact a wills and estates attorney. They can assess the situation, provide a consultation, and determine whether or not legal action is needed.
Wishing you luck.
