What an Executor Cannot Do: 7 Legal Limits

If you’ve been asked to serve as an executor, you might feel a mix of pride and pressure. It’s a significant responsibility that requires organization, integrity, and a clear head. The entire process is built on a legal concept called “fiduciary duty,” which simply means you must act in the estate’s best interest, not your own. This duty creates clear lines you cannot cross. Before you make a single phone call or write one check, the most important thing you can learn is what an executor cannot do. This knowledge will protect you, the estate, and the beneficiaries you serve.

Key Takeaways

• Follow the Will, Not Your Feelings: Your primary duty is to execute the instructions in the will exactly as they are written. You cannot alter the terms, change who inherits, or make decisions based on your personal sense of fairness—the will is the final word.
• Manage Finances with Integrity: You have a legal fiduciary duty to act in the estate’s best interest. This requires keeping estate funds completely separate from your own, paying all debts before distributing any assets, and avoiding any transaction that could be seen as self-serving.
• Keep Detailed Records and Get Professional Help: Protect yourself from liability by documenting every single financial transaction. Working with an experienced estate administration attorney is a smart move that ensures you follow the law and avoid common, costly mistakes.

What Is an Executor’s Role?

Being named the executor of a will is a significant gesture of trust. It means someone believed you were the most responsible and capable person to handle their final affairs. While it’s an honor, it’s also a serious legal role that comes with a long list of duties and, importantly, a set of strict limitations. Think of an executor as the captain of a ship, tasked with guiding the estate through the legal process of probate and ensuring all the “cargo”—the assets—reaches its intended destination safely.

Your job is to act on behalf of the person who passed away, following the instructions in their will to the letter. This involves everything from locating the will and filing it with the court to inventorying assets, paying off final debts, and ultimately distributing what’s left to the beneficiaries. It’s a role that requires organization, integrity, and a clear understanding of your legal obligations. Many people feel overwhelmed when they first take on this responsibility, which is completely normal. The key is to approach it methodically, one step at a time. Before you can understand what you can’t do, it’s crucial to have a firm grasp on what the job actually entails.

The Official Definition

So, what exactly is an executor? In simple terms, an executor is the person or institution appointed in a will to manage the deceased person’s estate. Your official job is to gather all the assets (like bank accounts, property, and investments), pay any outstanding debts and taxes, and then distribute the remaining property to the people named in the will, who are called the beneficiaries. You are essentially the project manager for wrapping up someone’s financial life according to their final wishes. This is a formal appointment that is confirmed by a court, giving you the legal authority to act on behalf of the estate.

An Executor’s Primary Responsibilities

The most important concept an executor must understand is “fiduciary duty.” This is a legal term that means you have an obligation to act in the absolute best interest of the estate and its beneficiaries—not yourself. Your main job is to protect the assets of the estate, follow the will’s instructions precisely, and act with complete honesty and loyalty. This duty also includes keeping the beneficiaries informed. You should provide them with a copy of the will if they ask, give them updates on the trust administration process, and answer their reasonable questions. Open communication and transparency are key to fulfilling your role properly and avoiding potential conflicts.

What Can’t an Executor Do With a Will?

Serving as an executor is a significant responsibility, but it’s a role with clear boundaries. Think of the will as a final set of instructions left by your loved one—your job is to follow that map, not draw a new one. The court grants you the authority to act on behalf of the estate, but that authority is strictly limited to carrying out the terms written in the will. These rules aren’t just suggestions; they are legal guardrails designed to protect the deceased person’s wishes and ensure every beneficiary is treated fairly according to those wishes.

Your personal opinions, feelings about what seems “fair,” or even what the beneficiaries might want are secondary to what the document says. The entire probate process is structured around honoring the final intentions of the person who passed away. Straying from these instructions can lead to legal challenges from beneficiaries, personal financial liability, and even removal as the executor. This is because you have a fiduciary duty to the estate, which is a legal obligation to act solely in the estate’s best interests. Understanding what you cannot do is just as important as knowing your duties. Let’s look at the most important restrictions placed on an executor when it comes to the will itself.

Don’t Change the Will’s Terms

One of the most rigid rules is that an executor cannot change the will’s terms. It doesn’t matter if you believe the distribution of assets is unfair or if a beneficiary complains about their inheritance. The will is a legally binding document that reflects the final wishes of the person who created it. An executor cannot alter what the will says about how to distribute money or property, even if all the beneficiaries agree to a different plan. The only entity with the power to modify a will is the court, and this only happens under very specific and rare circumstances. Your duty is to implement the plan as written, not to revise it.

Don’t Add or Remove Beneficiaries

Just as you can’t change the terms, you absolutely cannot alter the list of beneficiaries. An executor must follow the instructions exactly as they are written, which includes honoring the designated heirs. You can’t add someone you feel was unfairly left out, nor can you remove a beneficiary due to a personal disagreement or a change in family dynamics since the will was signed. The group of people set to inherit is fixed. Attempting to modify the list of beneficiaries is a serious breach of your fiduciary duty and opens the door to legal action and personal liability for any damages caused to the estate.

Follow the Will’s Instructions Exactly

Your core responsibility is to act in the best interest of the estate by following the will’s instructions to the letter. This goes beyond simply identifying who gets what. If the will directs you to sell a specific property and divide the proceeds, you must do so—even if some beneficiaries would prefer to keep the property. If it outlines a plan for assets to be placed into a trust for a minor, that process of trust administration must be followed precisely. You are the agent tasked with executing a pre-written plan, not an editor with the freedom to make changes. Every action you take must align with the specific directions provided in the will.

How to Handle Estate Assets (and What to Avoid)

Once you’re appointed as executor, you essentially become the temporary manager of the deceased person’s financial life. This is a significant responsibility that comes with a strict legal standard called a “fiduciary duty.” In simple terms, this means you must always act in the best interest of the estate and its beneficiaries, not yourself. Managing the estate’s assets—from bank accounts and real estate to personal belongings—is where this duty is most tested.

Handling these assets correctly is central to the entire probate process. It involves more than just safeguarding property; it requires careful accounting, transparent communication, and an unwavering commitment to fairness. Mistakes in this area, even unintentional ones, can lead to serious legal and financial consequences. To protect yourself and honor the trust placed in you, it’s critical to understand the clear lines you cannot cross. This includes keeping funds separate, paying off all debts before distributing inheritances, and steering clear of any transactions that could be seen as self-serving.

Keep Estate and Personal Money Separate

One of the most fundamental rules for an executor is to never mix your personal money with the estate’s money. This is a legal concept known as “commingling,” and it’s strictly forbidden. Combining funds makes it impossible to track the estate’s finances accurately and can create the appearance of mismanagement or even theft.

Your first practical step should be to open a new, separate bank account in the name of the estate. All of the deceased’s cash assets should be deposited into this account, and all estate expenses—like funeral costs, utility bills for their home, and legal fees—must be paid from it. Keeping meticulous records of every single transaction is not just good practice; it’s a legal requirement of your role in the trust administration process.

Don’t Use Estate Funds for Personal Gain

The estate’s assets are not your personal piggy bank. As an executor, you cannot use the estate’s money for your own benefit, period. This means you can’t “borrow” cash from the estate account to cover a personal bill, even if you fully intend to pay it back. You also can’t use estate property, like a car or vacation home, for your personal enjoyment.

Think of the estate’s funds as being held in trust for the beneficiaries. Every decision you make must be for their benefit, as outlined in the will. Using assets for personal gain is a direct violation of your fiduciary duty and can lead to your removal as executor and even personal financial liability. A well-drafted estate plan provides clear instructions, helping you manage assets according to the decedent’s exact wishes.

Pay Debts Before Distributing Assets

It can be tempting to start distributing inheritances to eager beneficiaries right away, but this is a critical mistake. Before any beneficiary receives a single dollar, you must ensure all of the deceased person’s legitimate debts and taxes are paid in full. This includes everything from mortgages and credit card bills to final medical expenses and income taxes.

You are responsible for identifying the estate’s creditors and settling its liabilities. Distributing assets prematurely can leave the estate without enough funds to cover its obligations. If this happens, creditors could sue the beneficiaries to recover the money, and you could be held personally responsible for the shortfall. Always follow the proper order: gather assets, pay all debts and expenses, and only then distribute what remains to the beneficiaries.

Avoid Self-Dealing and Conflicts of Interest

As executor, you must be completely impartial. This means you cannot engage in “self-dealing” or create a conflict of interest. Self-dealing occurs when you, in your personal capacity, enter into a transaction with the estate. For example, you cannot buy the deceased’s home from the estate for a price below its fair market value or sell your own property to the estate.

Even the appearance of a conflict can cause issues. If you need to buy an asset from the estate, you must pay a fair, appraised market price and it’s often wise to get court approval first. The guiding principle is transparency and fairness. Always ask yourself if an objective third party would view the transaction as being in the best interest of the beneficiaries. For more guidance on complex situations, you can often find helpful articles on our blog.

An Executor’s Duty to Communicate

One of the most common reasons executors find themselves in hot water is a failure to communicate. While managing assets and paying debts are critical tasks, keeping beneficiaries informed is a legal duty, not just a courtesy. As an executor, you are a fiduciary, which means you have a legal and ethical obligation to act transparently and in the best interests of the estate’s beneficiaries. Secrecy breeds suspicion, and even if you’re doing everything by the book, keeping people in the dark can lead to distrust, family conflict, and costly legal challenges.

Think of yourself as the captain of a ship and the beneficiaries as your passengers. They have a right to know where you’re going, what the major milestones are, and if any storms are on the horizon. This doesn’t mean you need to ask for permission on every minor decision, but it does mean providing clear, consistent updates on the progress of the trust administration. Good communication builds trust and helps the entire process move forward more smoothly, saving everyone time, money, and stress.

Provide Regular Updates to Beneficiaries

As an executor, you must keep beneficiaries reasonably informed about the estate. This starts with notifying them that they are, in fact, beneficiaries and providing them with a copy of the will if they request it. From there, you should provide periodic updates on major milestones. Let them know when the will has been filed with the court, when you’ve completed the inventory of assets, when major debts have been paid, and when you anticipate distributing the remaining assets. A simple email update every month or two can go a long way in managing expectations and preventing anxious questions down the line.

Don’t Withhold Information or Act Secretly

An executor cannot operate in a silo. Intentionally withholding information or ignoring reasonable questions from beneficiaries is a direct violation of your fiduciary duty. You can’t refuse to show a beneficiary the will or keep them in the dark about the estate’s financial status. While you don’t have to share every single receipt, you must be transparent about the overall picture. Acting secretly can make it appear as though you have something to hide, which is a red flag for beneficiaries and the court. This behavior can easily lead to a petition for your removal as executor, so it’s always best to be open and honest.

Get Court Approval for Major Decisions

While you have the authority to manage the estate, that power isn’t absolute. You cannot make significant decisions that would alter a beneficiary’s inheritance without getting approval first. For example, you can’t decide to sell the family home that was specifically willed to a sibling just to make liquidation easier, unless it’s necessary to pay estate debts. For major actions—like selling real estate, liquidating large investment accounts, or continuing to run a family business—you should either get written consent from all affected beneficiaries or seek formal approval from the probate court. This protects you from liability and ensures you’re acting in everyone’s best interest.

Getting Paid: Rules for Executor Compensation

Serving as an executor is a significant responsibility that involves a lot of time and effort. Because of this, California law allows you to be paid for your work. However, this compensation isn’t a blank check. The process is regulated to protect the estate and its beneficiaries from mismanagement. You can’t simply decide on a fair wage and write yourself a check from the estate account.

All payments must be transparent and, in most cases, approved by the court. California has specific guidelines that calculate executor fees based on the value of the estate. Any compensation beyond that standard amount, known as “extraordinary fees,” requires special permission. Understanding these rules is essential for fulfilling your duties correctly and avoiding legal trouble. Acting with integrity ensures that you are compensated fairly without compromising the interests of the estate you were appointed to protect.

Don’t Take Unapproved Fees

One of the most critical rules for an executor is that you cannot pay yourself without court approval. While you are entitled to compensation, you can’t just dip into the estate’s funds whenever you feel you’ve earned it. Taking money prematurely can be seen as a misuse of estate assets and can lead to serious legal consequences.

This rule also applies to paying yourself for “extra” work or hiring friends and family at inflated rates. If you perform tasks that go beyond typical executor duties, you may be entitled to extraordinary fees, but you must petition the court and justify them first. The court’s job is to ensure all payments are reasonable and necessary for the administration of the estate.

Understand How Executor Payments Are Approved

Executor compensation is a formal step in the probate process, not a private transaction. To get paid, you must submit a detailed accounting to the court and the beneficiaries. This report outlines the estate’s assets, debts paid, and any income earned. In this final report, you will formally request your statutory fee.

The court reviews this request to confirm it aligns with California’s legal guidelines and that you have managed the estate properly. This formal approval process protects you by creating a transparent record of your compensation. It also reassures beneficiaries that the estate’s finances are being handled correctly. Always remember, your primary duty is to act in the best interest of the estate, not your own financial gain.

Avoid Taking Personal Perks from the Estate

Your role as an executor does not come with personal perks. You cannot use estate property for your own benefit, such as living in the decedent’s home rent-free, driving their car, or using their belongings. These assets belong to the estate until they are officially distributed to the beneficiaries. Even if you are also a beneficiary, you must wait until the court approves the final distribution to receive your inheritance.

Taking assets early or using them for personal convenience is a form of self-dealing and a serious breach of your fiduciary duty. This principle is a cornerstone of both probate and trust administration. Treat all estate property with the same care and respect as you would a client’s assets, keeping everything separate from your personal finances until your duties are complete.

Common Myths About an Executor’s Power

Movies and TV often paint a picture of an executor with absolute power, making dramatic decisions and controlling every last penny. In reality, an executor’s role is much more defined and regulated. It’s a position of immense trust and responsibility, not unlimited authority. Let’s clear up some of the most common misconceptions about what an executor can actually do. Understanding these limits is key, whether you’re naming an executor in your will or have been asked to serve as one.

Myth: The Executor Inherits Everything

This is one of the biggest misunderstandings about the role. An executor is a manager, not automatically a beneficiary. Their job is to manage and distribute the estate’s assets according to the instructions left in the will. While it’s common for a child or spouse to be named as both executor and a primary beneficiary, the two roles are legally separate. The executor must follow the will’s terms for all beneficiaries, ensuring everyone receives what they are entitled to. They don’t get to claim the assets for themselves unless the will specifically names them as a recipient.

Myth: You Can Act Without Court Appointment

Just because you’ve been named as the executor in a will doesn’t mean you can start acting immediately after the person passes away. Your authority isn’t official until a California court formally appoints you. This happens during the probate process, where the will is validated and the court grants you “Letters Testamentary.” This legal document is what gives you the power to access bank accounts, sell property, and manage other estate business. Trying to act before you have this official appointment can lead to legal trouble and personal liability for any mistakes made.

Myth: The Executor Has Unlimited Power

An executor holds significant power, but it’s far from absolute. They operate within a strict legal framework defined by the will and California state law. Think of them as the CEO of the estate, accountable to the beneficiaries (the shareholders) and the court (the board of directors). Every decision must be made with the estate’s best interest in mind, a responsibility known as a fiduciary duty. An executor can’t change the will, sell assets for a fraction of their value to a friend, or make decisions based on personal feelings. Their actions are reviewable and can be challenged by beneficiaries if they step out of line.

Myth: The Executor Controls Non-Probate Assets

An executor’s authority is limited to the assets that go through the probate process. Many valuable assets, however, pass directly to heirs without court involvement. These are called non-estate plan is so important, as it coordinates how all of your assets are handled.

What Happens When an Executor Breaks the Rules?

An executor’s role is built on a foundation of trust and legal responsibility, known as a fiduciary duty. This isn’t just a suggestion; it’s a legally enforceable obligation to act in the best interests of the estate and its beneficiaries. When an executor fails to uphold this duty, whether through intentional misconduct or serious negligence, the consequences can be severe. The legal system has several mechanisms in place to hold a rogue executor accountable, protecting the assets of the estate and ensuring the deceased’s final wishes are honored. These consequences range from being removed from the role to facing personal financial penalties and even criminal charges.

Facing Removal and Personal Liability

If beneficiaries believe an executor isn’t doing their job correctly, they don’t just have to stand by and watch. They have the right to take action. The first step is often to petition the court to have the executor removed from their position. A judge will review the evidence of misconduct, such as failing to communicate, mismanaging funds, or unnecessary delays, and can appoint a replacement. Beyond removal, an executor can be held personally liable for financial damages. This means if an executor’s actions cause the estate to lose money, they may have to repay those losses from their own pocket. For example, if an executor sells an estate property for far below market value to a friend, they could be forced to cover the financial difference.

Lawsuits for Breach of Fiduciary Duty

When an executor violates their legal obligations, beneficiaries can file a lawsuit against them for “breach of fiduciary duty.” This is a formal legal claim that holds the executor accountable for their actions. If the lawsuit is successful, the court can order the executor to pay damages to the estate for any harm they caused. This legal action serves as a powerful tool for beneficiaries to correct wrongdoing and recover lost assets. The possibility of a lawsuit is a strong incentive for any executor to perform their duties with the utmost care and transparency throughout the entire probate process.

Potential Criminal Charges for Major Offenses

While most disputes over an executor’s conduct are handled in civil court, some actions are so serious they cross the line into criminal behavior. An executor can face criminal charges for offenses like embezzlement (stealing from the estate), fraud, or forgery. For instance, if an executor writes checks from the estate account to pay their personal credit card bills, that’s not just a breach of duty—it’s theft. A criminal conviction can lead to significant fines, restitution payments, and even jail time. These severe penalties are reserved for the most egregious cases of executor misconduct and underscore the gravity of the role.

How to Fulfill Your Duties and Avoid Mistakes

Serving as an executor is a significant responsibility, but it doesn’t have to be overwhelming. The key is to be proactive, transparent, and always remember who you’re serving: the estate and its beneficiaries. By following a few core principles, you can manage the process effectively and protect yourself from potential legal trouble. Think of it as a roadmap for honoring the deceased’s wishes while safeguarding their legacy—and your own peace of mind. These steps will help you stay on the right path from start to finish.

Work with an Estate Administration Attorney

You don’t have to go through this process alone. In fact, you shouldn’t. If you are an executor, it’s highly recommended to work with an experienced probate attorney. They can help you understand the will, manage assets, communicate with beneficiaries, handle debts, and make sure you follow all legal rules. Hiring a professional isn’t a sign of weakness; it’s a smart move that protects both you and the estate. An attorney acts as your guide, helping you make sense of complex legal requirements and ensuring every “t” is crossed. This support is invaluable for navigating the probate process and fulfilling your duties correctly.

Keep Meticulous Records

Your best friend throughout this process will be a detailed ledger. As an executor, you must keep good records of all money spent and property transferred. Document every single transaction, no matter how small. This includes paying bills, selling assets, and distributing funds to beneficiaries. Create a dedicated bank account for the estate to avoid mixing funds and keep a clear paper trail of all activity. This diligence protects you from accusations of mismanagement and makes the final accounting for the court and beneficiaries a much smoother process. Think of it as creating a clear, undeniable history of your responsible actions.

Always Act in the Estate’s Best Interest

This is the golden rule for any executor. You have a “fiduciary duty,” which is a legal obligation to act solely in the best interest of the estate and its beneficiaries. This means you cannot use the estate for your own personal gain or do anything that would financially harm it. For example, you can’t sell an estate property to your friend for a below-market price or decide to live in the deceased’s home rent-free. Every decision, from selling assets to paying debts, must be made with the goal of preserving and maximizing the value of the estate for the people who will inherit it. This principle is the foundation of trust administration and your role as executor.

Related Articles

• What Are the Duties of an Executor in California Probate? – Lawvex
• The Crucial Role of the Executor in Probate – Lawvex
• Understanding Your Responsibilities as Executor of a Will – Lawvex

Frequently Asked Questions

What if all the beneficiaries agree to change how the assets are divided? Even with unanimous agreement from every beneficiary, you as the executor do not have the authority to change the terms of the will. The will is a legal document that reflects the final wishes of the person who passed away, and your job is to follow those instructions precisely. Attempting to create a different distribution plan, even with good intentions, goes against your legal duty and could expose you to personal liability.

Can I use the estate’s money to hire a lawyer to help me? Yes, and you absolutely should. The reasonable cost of hiring an estate administration attorney is considered a normal expense of the estate. This means the legal fees are paid from the estate’s funds, not from your own pocket. Working with a professional is a smart way to protect yourself from mistakes and ensure you are fulfilling all your legal obligations correctly.

I’m also a beneficiary in the will. Can I take my share of the inheritance early? It can be tempting, but the answer is a firm no. You must wait until the entire administration process is complete before any assets are distributed to any beneficiary, including yourself. All of the estate’s debts, taxes, and final expenses must be paid first. Taking your inheritance before the court approves the final distribution is a serious breach of your duties and can have significant legal and financial consequences.

How often do I really need to update the beneficiaries? There isn’t a strict legal schedule, but clear and consistent communication is key to avoiding conflict. A good practice is to provide updates at major milestones in the process. For example, let them know when the will has been filed with the court, when you have a clear inventory of the assets, and when you have an estimated timeline for the final distribution. A simple, proactive email every month or two can manage expectations and build trust.

What’s the very first thing I should do after a loved one passes and I find out I’m the executor? Your first practical step is to locate the original, signed will. Once you have that document, your next step should be to schedule a consultation with a probate attorney. They will review the will and guide you through the process of filing it with the proper court to get officially appointed. You have no legal authority to manage bank accounts or other assets until the court formally grants you that power.