When someone passes away, their estate needs to be handled according to their will, and this responsibility often falls to an executor. Executors play a critical role in ensuring that the deceased’s wishes are carried out, all debts are paid, and beneficiaries receive what they are entitled to.
However, while the role of an executor comes with a significant level of authority, it is also heavily regulated. There are many legal limits on what executors can and cannot do, and violating these limits can result in serious consequences.
In this blog, we’ll explore what an executor cannot do, providing a clear list of the ten most important restrictions and mistakes executors should avoid.
What Are the Role and Limits of an Executor?
An executor, often appointed in a will, is entrusted with the management of an estate after someone’s death. The responsibilities of an executor can vary depending on the complexity of the estate, but typically include tasks such as applying for probate, gathering and managing estate assets, paying any debts or taxes, and distributing the remaining assets according to the will.
While executors may seem to hold significant power, their role is subject to legal constraints. They are held to high accountability standards to ensure they do not misuse their authority.
The key to successfully administering an estate is understanding these limits. Executors are expected to act impartially, in good faith, and in line with the deceased’s law and wishes. Breaching these duties can lead to legal action by beneficiaries or creditors. Let’s look at some of the specific actions executors are prohibited from taking.
1. Cannot Act Without a Will or Probate
An executor’s legal authority begins when probate is granted. Probate is the legal process by which a will is validated, and the executor is officially recognized as having the right to administer the estate. This means that, without probate, an executor has no legal standing to pay debts, distribute assets, or manage any of the deceased’s property. Even if a will clearly names someone as the executor, they must still wait for the probate process to be completed before they can legally act.
Additionally, if the deceased did not leave a valid will, known as dying intestate, the estate is managed according to strict rules of intestacy. In this case, the executor’s authority is more limited, as they must adhere to statutory guidelines for distributing assets.
2. Cannot Favor Personal Interests Over Beneficiaries
Executors are legally bound by a fiduciary duty to act in the estate’s and its beneficiaries’ best interests. This means that any decision they make must benefit the estate, not themselves. An executor cannot, for example, decide to purchase an estate property at a reduced rate or make investments using estate funds that would benefit them or their family.
Executors must maintain an impartial stance, particularly when they also benefit from the will. While it’s not uncommon for an executor to be a family member who may also inherit from the estate, they cannot use their role to prioritize their own share over others. Breaching this fiduciary duty can lead to serious legal repercussions, including personal liability for any losses suffered by the estate or beneficiaries.
3. Cannot Distribute Assets Before Paying Debts and Taxes
One of the most common mistakes executors make is distributing assets too early. Executors are responsible for ensuring that all outstanding debts, liabilities, and taxes of the deceased are fully paid before distributing any remaining assets to the beneficiaries. This might include paying off credit card bills, outstanding loans, funeral expenses, and taxes such as inheritance tax.
The law is clear: creditors and the tax authorities have priority over beneficiaries. If an executor distributes the estate before these obligations are settled, they may be held personally liable to cover any remaining debts. In such cases, beneficiaries may have to return assets to cover unpaid liabilities, which can lead to disputes and legal action.
4. Cannot Ignore or Override the Will’s Instructions
An executor’s role is to execute the will exactly as written. They cannot make changes to the will, even if they believe the changes would be in the best interest of the beneficiaries or the estate. For example, suppose the will specifies that a piece of property should go to one beneficiary. In that case, the executor cannot decide to sell the property and divide the proceeds among all the beneficiaries instead, even if they think it would be more “fair.”
The only exceptions to this rule occur in cases where the will’s instructions are illegal or impossible to carry out. In such cases, the executor may need to seek court guidance before taking any action. Ignoring the will’s instructions without proper legal grounds can result in the executor being removed or facing legal challenges from the beneficiaries.
5. Cannot Withhold Information from Beneficiaries
Executors have a legal obligation to be transparent with beneficiaries about the estate’s administration. Beneficiaries are entitled to know the progress of the probate process, how assets are being managed, and when they can expect to receive their inheritance. Failing to provide this information or deliberately withholding it can lead to tensions and suspicions.
Beneficiaries can request formal accounts of the estate’s administration if they feel the executor is not being forthcoming. If the executor fails to comply, beneficiaries may seek court intervention. Executors should communicate regularly and openly to avoid unnecessary conflicts and potential legal issues.
6. Cannot Sell Estate Assets Below Market Value
Executors are responsible for managing and selling estate assets to maximize their value for the benefit of the beneficiaries. Selling assets, such as property, below their fair market value is not only financially irresponsible but could also be seen as an act of bad faith or favoritism. For instance, selling a family home to a friend at a discounted rate would be a breach of the executor’s duty.
To avoid any suspicion of wrongdoing, executors should obtain professional valuations for significant estate assets and follow standard procedures when selling them. They must act in the estate’s best interest and ensure that beneficiaries receive the full value of what the deceased intended them to inherit.
7. Cannot Exclude Family Members from the Process
Executors must handle family dynamics carefully. While they are not required to consult every family member on every decision, they cannot deliberately exclude individuals with a vested interest in the estate. For example, if an executor is handling a family estate, they cannot ignore the opinions or requests of beneficiaries simply because they are difficult to deal with.
Excluding beneficiaries or failing to keep them informed can lead to family disputes, which may delay the probate process and even lead to legal challenges. Communication and transparency are key to ensuring that everyone involved feels their concerns are heard and respected.
8. Cannot Act Without the Court’s Approval in Certain Situations
In some cases, executors may need to seek court approval before taking certain actions, particularly if there is a dispute among the beneficiaries or if the will contains unusual provisions. For example, if the will leaves large sums to a minor or requires property sale with complex legal issues, the executor may need to ask the court for permission before proceeding.
In cases where the executor is unsure how to interpret the will’s instructions or handle certain aspects of the estate, seeking court approval can provide legal protection and clarity. Failing to do so when required can result in the executor being held responsible for any negative outcomes.
9. Cannot Make Unauthorised Investments
Executors are tasked with managing the estate’s finances prudently. They cannot use estate funds to make risky or unauthorised investments that could deplete the estate’s value. The goal is to preserve the estate’s assets until they are distributed to the beneficiaries, not to engage in financial speculation.
Any investments made must be in line with the executor’s duty to protect the estate and ensure it is properly managed. Executors who make irresponsible or unauthorised investments can be held personally liable for any losses incurred by the estate.
10. Cannot Refuse to Act or Abandon Responsibilities
Once someone has accepted the role of executor, they are legally required to fulfil their duties. An executor cannot decide halfway through the process that they no longer wish to serve in the role without formally resigning or appointing a replacement with the court’s approval. Abandoning the role without proper notice can delay the probate process and harm the beneficiaries.
Suppose an executor feels unable to continue due to personal reasons, illness, or other factors. In that case, they must notify the beneficiaries and the court and take steps to formally resign or transfer their responsibilities to a co-executor or a new appointee. Simply walking away from the role can result in legal consequences and damage the estate’s administration.
What Are the Consequences of Breaching Executor Duties?
If an executor breaches their duties—whether by acting improperly, exceeding their authority, or failing to fulfil their responsibilities—they can face significant legal consequences. Beneficiaries can apply to the court to have the executor removed and replaced, or they can sue the executor for any losses caused by their actions. In some cases, the court may order the executor to repay funds or reverse improper transactions.
Executors who breach their duties may also lose their right to any inheritance if they are also a beneficiary, and in severe cases, they could face criminal charges if fraud or theft is involved.
What Are the Steps to Take if an Executor Oversteps Their Bounds?
Executors hold a position of significant trust and responsibility. Their duty is to manage the deceased’s estate in line with the will and the law, ensuring the beneficiaries receive their inheritance and that the estate is properly settled. However, there are instances where an executor might misuse their authority, make improper decisions, or fail to perform their duties, which can lead to financial loss or emotional strain for the beneficiaries.
If you believe an executor has overstepped their bounds or is acting improperly, here are the steps you can take to address the situation.
1. Request Information and Accounts
The first step in addressing concerns with an executor is to ask for clear communication and transparency. Executors have a legal obligation to keep beneficiaries informed about the estate’s progress. If you suspect wrongdoing, request:
- A full account of the estate’s assets, liabilities, and any actions taken by the executor.
- Detailed financial records, showing how the estate’s funds are being handled.
- Clarification on the timeline for distributing the assets.
Most issues can be resolved through communication, as executors may not always realise the importance of keeping beneficiaries updated. A formal request for this information can be made in writing, allowing the executor to explain or correct any misunderstandings.
2. Seek Mediation or Legal Advice
If direct communication does not resolve the issue or if the executor refuses to provide the requested information, the next step is to seek legal advice. A solicitor who specialises in probate or estate law can help assess whether the executor has breached their duties or acted improperly. They can also guide you through the available options, such as:
- Mediation: A professional mediator can help resolve disputes between beneficiaries and executors without going to court. This is often a quicker and less adversarial solution that allows both sides to come to an agreement.
- Legal intervention: A solicitor can formally communicate with the executor on your behalf, reminding them of their legal responsibilities and pressing for transparency or corrective action.
Getting legal advice early can help you understand the strength of your case and avoid unnecessary conflict, as some situations can be rectified through negotiation or a simple agreement.
3. Apply for an Executor to Be Removed
If the executor continues to act improperly or is failing to fulfill their legal duties, beneficiaries can apply to the court for the removal of the executor. This is a serious step and is typically only taken in misconduct or gross negligence cases. Grounds for removal may include:
- Mismanagement of the estate: This could involve reckless spending, failing to pay debts, or making unauthorized investments.
- Failure to act: If the executor delays probate or refuses to distribute the assets promptly.
- Conflict of interest: An executor using their position for personal gain or prioritizing their interests over those of the beneficiaries.
- Fraud or dishonesty: Any attempt by the executor to conceal assets or intentionally act against the deceased’s wishes.
To apply for an executor’s removal, you must present evidence to the court demonstrating that they have failed in their duties. The court will assess whether the executor’s actions have harmed the estate or the beneficiaries and, if appropriate, may appoint a new executor or administrator.
4. File a Legal Claim for Breach of Duty
In cases where an executor’s misconduct has caused financial loss to the estate, beneficiaries can pursue a legal claim for breach of fiduciary duty. Executors have a legal obligation to act in the best interests of the estate, and any breach of this duty can make them personally liable for the losses they cause.
For example, if an executor sells a property for less than its market value, or makes an unauthorised investment that causes financial loss, they can be held responsible for compensating the beneficiaries. In such cases, the court may:
- Order the executor to repay funds to the estate.
- Reverse any improper transactions, such as returning a sold asset or recovering funds that were misappropriated.
Filing a legal claim is a complex process that requires legal representation. Beneficiaries should gather as much evidence as possible to support their case, such as financial statements, witness testimony, and any communications that demonstrate the executor’s misconduct.
5. Request a Court to Supervise the Estate
If you do not wish to have the executor removed but are concerned about their management of the estate, you can ask the court to supervise the estate administration. This can ensure that the executor’s actions are monitored closely, reducing the risk of further mismanagement. Court supervision may involve:
- Requiring the executor to provide regular reports to the court and beneficiaries.
- Setting specific deadlines for tasks, such as distributing assets or paying debts.
- Appointing a co-executor or professional administrator to assist in the estate management.
This option is often preferable when the executor has made errors due to inexperience or lack of knowledge, rather than intentional misconduct. Court supervision can help keep the process on track and ensure that the executor fulfils their obligations under close oversight.
6. Seek Compensation for Losses
If you have suffered financial loss due to an executor’s actions, you may be able to seek compensation from the executor directly. This typically involves:
- Filing a civil claim for damages, which requires proving that the executor’s breach of duty caused financial harm to you or the estate.
- Requesting a portion of the estate to cover legal fees or losses that arose from the executor’s misconduct.
In cases of fraud or gross negligence, the court may award damages to beneficiaries to compensate for the executor’s actions. This is often the last resort after mediation and legal claims have been exhausted, but it can provide a remedy for beneficiaries who an executor’s overreach has harmed.
7. Request an Independent Estate Administrator
If the estate is particularly complex or the executor is clearly overwhelmed, beneficiaries can request that the court appoint an independent estate administrator. This may be a solicitor, a professional trustee, or a third party who has no personal interest in the estate.
An independent administrator can take over all aspects of the estate’s management, ensuring that it is handled professionally and impartially. This can be a good solution when the executor is not necessarily acting in bad faith but is struggling to manage the estate’s complexities.
8. File for Executor’s Insurance Claims
In some cases, an executor may have insurance in place to cover any errors or mismanagement. If the executor’s misconduct has caused a loss to the estate, and they are covered by executor insurance, beneficiaries can file a claim against the insurance policy. This can help recover funds without the need for lengthy legal battles.
What an Executor Can Do?
An executor is responsible for handling a person’s estate after they pass away, ensuring their wishes are fulfilled. Here are the main things an executor can do:
1. Apply for Probate
The executor can apply for probate, which is the legal process that gives them the authority to manage the estate. They can’t start managing assets or paying debts until probate is granted.
2. Collect and Protect Assets
The executor gathers all the estate’s assets (property, money, belongings) and makes sure they are safe. This could include securing property, closing bank accounts, or getting valuations for certain items.
3. Pay Debts and Taxes
The executor uses the estate’s money to pay off any debts (like loans, credit card bills) and taxes (such as inheritance tax) owed by the deceased. This has to be done before giving anything to the beneficiaries.
4. Communicate with Beneficiaries
It’s the executor’s job to keep the beneficiaries (the people named in the will) informed about what’s happening with the estate. They should let them know how long the process might take and when they can expect their inheritance.
5. Manage and Sell Property
If needed, the executor can manage or sell estate property. They might rent out a house while waiting for it to be sold, or sell investments to raise funds for debts and taxes.
6. Distribute Assets
Once all debts and taxes are paid, the executor can distribute the remaining assets to the beneficiaries as outlined in the will. This can include giving money, property, or specific personal items to the people the deceased named in the will.
7. Handle Disputes
If there are disputes between beneficiaries or claims against the estate (like from a creditor or family member), the executor can deal with them. They may need to seek legal advice or ask the court for help.
8. Hire Professionals
If the estate is complicated, the executor can hire professionals (like solicitors, accountants, or estate agents) to help with legal issues, tax calculations, or selling property.
9. Claim Executor’s Fees
Executors are often allowed to claim reasonable expenses for costs they incur while managing the estate (e.g., travel costs or legal fees). Professional executors may also be paid for their time.
10. Handle Charitable Donations
If the will includes donations to charity, the executor is responsible for making sure these charitable gifts are fulfilled.
Conclusion
Being an executor is a significant responsibility that requires a thorough understanding of the legal boundaries. Executors must always act in the best interests of the beneficiaries and adhere strictly to the terms of the will. By avoiding these common pitfalls, executors can ensure that the estate is administered smoothly and legally, without disputes or legal challenges. Knowing what an executor cannot do is just as important as understanding what they can do, helping to safeguard the wishes of the deceased and ensuring the proper distribution of the estate.
What Are the Faqs About What an Executor Cannot Do?
What happens if an executor fails to follow the will?
If an executor does not follow the will’s instructions, beneficiaries can apply to the court for the executor’s removal or take legal action to recover any losses.
Can an executor be removed for misconduct?
Yes, beneficiaries can seek the removal of an executor if they are acting improperly or breaching their fiduciary duties.
Can an executor act before probate is granted?
No, an executor cannot legally manage or distribute the estate until probate has been granted.
Can beneficiaries challenge the executor’s decisions?
Beneficiaries can challenge an executor’s decisions if they believe the executor is acting against the interests of the estate or breaching their duties.
How long does an executor have to settle an estate in the UK?
The probate process can take anywhere from six months to over a year, depending on the complexity of the estate. Executors are expected to settle the estate within a reasonable timeframe.
What if an executor refuses to communicate with beneficiaries?
If an executor fails to keep beneficiaries informed, the beneficiaries can seek legal advice and, if necessary, apply to the court for intervention.
Can an executor benefit from the estate?
An executor cannot benefit from the estate unless they are also a named beneficiary. They must remain impartial and act solely in the interest of the beneficiaries.
