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Appointing an Executor? Here's What an Executor Cannot Do

Posted by Nina Whitehurst | Mar 13, 2023 | 0 Comments

The person you name as your executor will be accountable for a number of important tasks, even in managing the administration of a small estate. This may include filing tax returns, keeping meticulous records, and distributing assets to your beneficiaries.

At the same time, there are rules about what the person in this role is not permitted to do.

What Is an Executor?

An executor is a person you choose to administer your probate estate upon your death. When you have passed away, the executor, assuming he or she agrees to take on this role and can do so, presents your will to the court. The executor then asks the court to confirm his or her appointment.

Each state has rules regarding who may or may not serve in this role. Basic rules usually include that the executor must be of the age of majority (in most states, age 18) and of sound mind. In some states, including Tennessee, the executor must not have a felony conviction. There can also be other state-specific rules to qualify as an executor.

Assuming these rules are met, the executor may then begin to manage the probate estate affairs. The goal is to wrap up the probate estate in an orderly manner. Their responsibilities may include:

  • identifying what assets and property comprise the probate estate
  • determining what debts may need to be addressed
  • honoring the wishes expressed by the decedent in his or her will (to the extent possible)
  • filing any estate tax returns that may be needed
  • and much more.

Appoint a Capable and Responsible Person

Serving as an executor is a serious undertaking. If you are preparing a will, it is important to choose someone you know you can trust, who is reliable, and who will take his or her role seriously. It is also essential he or she is capable, so his or her financial sophistication and ability to understand complex issues matter.

As part of this decision-making process, you may consider the things the executor would be prohibited from doing as well.

What an Executor Cannot (And Should Not) Do

In general, an executor may not engage in bad acts or abuse his or her role. So, for example, the executor cannot refuse to probate a will if he or she agrees to take on this responsibility. The executor also cannot steal from the estate or mishandle estate property.

An executor cannot take money from bank accounts and use them for personal needs, transfer property for less than market value, pocket money he or she is collecting from rental properties that are part of an estate, and much more. Absent unusual circumstances, this is considered stealing.

If the executor steals from an estate, a court can remove that person from the executor position and hold him or her liable for the return of stolen funds. Those who abuse their roles in such ways may find themselves being sued by beneficiaries and dealing with other legal worries.

In most states, executors are allowed to receive a “commission” or fee for their services. In New York, for example, an executor collects commissions based on the estate's value. If the estate is worth $100,000 or less, the executor is entitled to 5 percent.

The executor may also be reimbursed for any reasonable and necessary expenses, with court oversight and approval.

In addition, there are some exceptions for use of estate property by an executor. In many situations, such as where a parent leaves a home to his or her child, that child is also serving as executor. A will typically provides that living in the house is permissible in such a situation. A will may also have additional language that permits certain “self-dealing” by an executor.

Executors are also expected to honor what is set forth in a will unless it is not feasible. So, an executor cannot arbitrarily refuse to carry out the wishes of the individual who had appointed him or her to the role, refuse to acknowledge beneficiaries, or refuse to wrap up an estate.

However, as with most things, there are exceptions. For example, suppose a will provides for something that is illegal, against public policy, or simply not possible (i.e., gifting of funds that do not exist). In that case, an executor understandably cannot carry out such provisions.

An executor cannot fail to maintain good records. In managing an estate for the benefit of others, the executor is supposed to keep records of all expenditures and transactions. The executor will also be expected to make this information reasonably available to beneficiaries, the court, and other parties with a vested interest in the estate.

Further Resources

There are many other examples of things an executor cannot do. Because every estate and will are unique, it is best to speak with your attorney. He or she can help alleviate any concerns you may have about what an executor may or may not be able to do.


About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...


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