Executors manage a deceased individual’s estate. They ensure everyone who needs to know about the death is made aware, identify and value estate assets, pay debts, and distribute estate assets.
As they do those things, executors are bound by legal and ethical obligations that define what an executor can and cannot do.
At Massingill, we simplify the complex. Based in Austin, Texas, our firm provides personalized estate planning and probate services focusing on clarity, flat-fee pricing, and accessible support. Reach out to learn more and set up a consultation to speak with a Massingill lawyer today.
What Is an Executor?
An executor is a person or entity a will declares responsible for administering an estate. If the decedent (deceased person) did not leave a will, an administrator performs the same duties.
An executor’s responsibilities include:
- Notifying creditors and heirs about the death,
- Inventorying and appraising estate assets,
- Paying debts and taxes, and
- Distributing assets to the beneficiaries.
Executors are estate fiduciaries—they must act in good faith and protect the estate’s interests.
Qualifying as an Executor
Under Texas law, to serve as an executor, a person must:
- Be a resident of Texas,
- Have no felony convictions, and
- Be deemed suitable by the court.
Notably, non-residents can serve as executors if they select a Texas resident to receive legal notices on their behalf, and convicted felons may serve as executors if the court concludes they are suitable regardless of the conviction.
Being Appointed as Executor
Being appointed as an executor in Texas involves:
- Filing the will and requesting appointment as executor;
- Attending a hearing to determine whether you are qualified to serve;
- If the court determines you are qualified, taking an oath swearing to carry out the executor’s duties faithfully, administer the estate according to the will, and act in the estate and its beneficiaries’ best interests;
- Requesting “Letters Testamentary” from the court, which, when issued, authorize the executor to act on behalf of the estate; and
- Paying a bond if the court requires it.
The court generally bases the bond amount on the estate’s value and the executor’s ability to pay. The law usually requires a bond unless the will waives that requirement or the court concludes a bond is unnecessary to protect the estate.
Fiduciary Duty Limits to What an Executor Can and Cannot Do
A fiduciary duty is an obligation one person (the fiduciary) has to act in the best interest of another party (the beneficiary or principal). As the estate’s fiduciary, the executor is legally obligated to act in the estate and its beneficiaries’ best interests and prioritize those interests over their own.
Executors must:
- Manage the estate reasonably and responsibly,
- Follow Texas law and procedure,
- Be honest and forthcoming with beneficiaries, and
- Avoid conflicts of interest.
Failing to meet these standards may justify the court keeping some or all of the bond, replacing you as executor, or even a beneficiary initiating a breach of fiduciary duty lawsuit against you.
What an Executor Can Do
Distinguishing between what an executor can do and what they must do sheds light on the executor’s role. An executor can usually take the following actions:
- Hire professional assistance. Executors should hire a probate attorney to help them follow the law and meet their duties throughout the probate process. They may also hire appraisers, accountants, or financial advisors to assist with valuation, taxes, or other financial matters.
- Begin the probate process. If a will designates an executor, that person should be the person to take the will to court and begin the probate process. However, someone else can if the executor is unable or unwilling to.
- Request independent administration. An executor can request independent administration to simplify the probate process. For an estate to qualify for independent administration, the will must authorize it, or all interested parties (beneficiaries) must agree to it in a signed writing.
- Manage estate property. An executor can decide to sell real estate, personal property, or other estate assets to pay debts or distribute to beneficiaries. The executor may choose which assets to sell within the terms of the will or Texas law and can also manage, invest, or transfer estate property to preserve or grow the estate’s value.
- Exercise discretion when distributing assets. Wills may include broad or ambiguous instructions, like stating the estate should be divided equally between three children. In those circumstances, the executor can decide how to accomplish the will’s terms within the bounds of their fiduciary duties.
Although executors’ obligations are strict, the distinctions between their responsibilities and powers mean that how they meet those obligations is more flexible.
What an Executor Cannot Do
What an executor cannot do, in short, is violate their fiduciary duties. There are several ways to violate an executor’s fiduciary duties, including:
- Failing to follow the will. Executors must follow the decedent’s will as written. They cannot modify, ignore, or reinterpret provisions and must remain mindful of their fiduciary duties even when the will is ambiguous.
- Using estate funds for personal expenses. Executors must keep estate funds separate from personal accounts and use them solely for estate-related purposes. Commingling funds or using estate assets for personal expenses may breach your fiduciary duty.
- Favoring or disfavoring certain beneficiaries. Executors must treat all beneficiaries fairly unless the will explicitly permits preferential treatment. Even when the will has favorites, the executor must not depart from the terms of the will and favor or disfavor beneficiaries.
- Acting without required court approval. Actions such as selling real estate or resolving disputes require probate court approval, particularly in a dependent administration. Executors must seek permission before taking these actions—not after.
- Miss or ignore deadlines. Failing to comply with legally required timelines or complete your duties can lead to beneficiaries requesting the court reprimand you, replace you as executor, or justify personal liability.
If you have questions about what actions an executor’s fiduciary duties, it is wise to consult with an experienced estate planning attorney for additional guidance.
Why Choose Massingill as Your Estate Planning Attorney in Austin?
Administering an estate can be daunting, but legal support makes all the difference. At Massingill, we provide compassionate, efficient guidance to executors and beneficiaries.
Our firm’s flat-fee pricing eliminates surprises, and our secure online tools ensure clients stay informed every step of the way. If you need assistance with probate or have concerns about an executor’s conduct, contact our team to schedule a time to speak with an estate planning attorney in Austin.
Resources:
- Texas Estates Code § 251.001, link.
- Texas Estates Code § 251.051, link.
- Texas Estates Code § 304.003, link.
- Texas Estates Code § 305.051, link.
- Texas Estates Code § 305.101, link.
- Texas Estates Code § 305.102, link.
- Texas Estates Code § 351.051, link.
- Texas Estates Code § 351.052, link.
Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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