It’s About Relationships

Does the estate executor influence who gets which assets?

On Behalf of | Jul 28, 2022 | Estate Administration & Probate |

After a loved one has passed away, the estate executor takes charge. They help to work through the probate process by getting the will admitted to probate, gathering and managing the assets, paying the bills and things of this nature.  Ultimately they will distribute the estate assets.

An administrator does the same things as the executor, except that in the case where an administrator is acting, there is no valid will that has been admitted into probate. The main difference is that an executor distributes assets according to the terms of the will and the administrator distributes assets according to the laws of intestacy.

But does this mean that the estate administrator is someone who gets to decide which assets are going to which person? How much influence do they have over this process?

Executors always have to follow the will

Generally, the estate executor has no influence over how assets are divided. Their job is not to make any decisions about who gets which assets. Instead, they simply follow the instructions that were laid out in the will. Their job is to make sure that the decedent’s wishes are honored, not to make those decisions on the other person’s behalf.

That being said, there can be some situations in which they have a small amount of influence. For example, the executor has to use the assets of the estate to pay off the taxes or any other debts that remain. The way this could influence who gets which assets is that the executor may need to sell assets in order to pay taxes and debts. Thus, if a beneficiary of a will was hoping to get a house, but there is not enough cash to pay debts, the executor may have to get a loan against the house or sell the house in order to pay the debt. And in some cases where there is not enough property in the estate to pay debts and give gifts according to the will, the executor may have to give a beneficiary less than the will provides. Simply put, if a will says “Pat gets $100,000” and there is $90,000 left over after debts and costs are paid, then Pat can’t get $100,000. There are specific rules in the Probate Code for how an estate gets divided when there is not enough money or assets to give everyone what is provided in the will.

But this is not the same as the executor deciding who gets what share of the estate, per se. The executor is just taking the necessary steps to handle the estate. It’s important for all involved to know exactly what those steps are and how to proceed. If you’re in charge of someone’s estate, it’s critical to understand both your obligations and your powers.

For the above, the main difference for the administrator (where there is no will being probated) is that the administrator needs to distribute assets according to what the Probate Code says is the people who inherit the estate.

Another wrinkle – advances on inheritance

Sometimes beneficiaries get an advance on their inheritance. For example, in late 2020 and early 2021, due to a change in property tax law, many families in California gave a house to one of their children so that the property taxes will not go up when the parents die. Where there might have been 2 or 3 children inheriting equally under a will, the child who got the house while the parents were living would generally be deemed as having received an “advance” on their inheritance.

This, again, is not the executor deciding who gets assets. It is just the executor following the fact that one child already got some or all of her/his share. Because this is done in the context of a probate, the probate court will still have to rule that the executor is correct in charging the advance on the inheritance against the estate properly.