What are an executor’s rights/duties?
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What are an executor’s rights/duties?
My dad changed his Will and really didn’t know the person that long that he put in charge of probate. Before he passed away I asked him if he could trust this person. He said that he really didn’t know. Now that my dad has passed away, I haven’t seen proof of the Will but the guy has already been removing certain things from my dad’s property and has not filed the Will
through the courts yet. What can I do? Something’s not right.
Asked on November 5, 2018 under Estate Planning, California
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
An executor's duties are to 1) collect and secure the estate's assets--this is often more metaphorical than literal, in that they don't have to necessarily physically collect or guard/protect everything, but should identify the assets and take basic steps (like having real estate locked up so squatters and theives or troublesome teens can't get in) to make sure they are not going anywhere. 2) To notify creditors, such as by publication in local media following the court rules for doing so, so they can put in claims. 3) To pay any final expenses (like the funeral) and any valid creditor claims, and to contest or challenge invaid creditor claims. 4) To distribute the assets as per the terms of the will--the executor must follow the terms of the will. And 5) to have the will probated--which means putting in into the court in the proper way, so the court can oversee 1) through 4) above.
If the executor is not doing these things, including if he is seeming taking any items or mony for himself, an heir or beneficiary can bring a legal action (lawsuit) in chancery court (a part of county court) seeking what is often called an "accounting"--to make the executor "account" for what he is doing. If the court finds he is acting improperly, it can order him to do or not do certain things, to repay any amounts taken to the estate, and even replace him as executor.
Ideally, hire a lawyer to help you do this: bringing this kind of lawsuit is not easy for a non-lawyer. (A probate attorney would be the kind to help.) If you can't afford an attorney or deem it not economicaly worthwhile, contact the probate court for instructions.
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