As you work on your estate plan, you will likely create a will. In your will, you determine how to divide your estate. You will also name beneficiaries, who are the people that receive your assets. It is also essential to appoint an executor. The executor of your will is the person who distributes the estate assets once you pass away. So in creating a will, listing beneficiaries, and naming an executor, you may wonder what an executor does and how much power they have. Another common question is whether the executor gets to choose who gets what. The executor must follow the instructions in the will and do what you want, but they do have some say in how probate is handled.
Continue reading this guide to learn more about executors, what their duties are, and how much power they have during the probate process. At Johnson Legal, we are devoted to protecting what matters most to our clients. We help people plan their estates, and some of the things we do are estate administration, probate, and writing last wills and testaments.
Being named as an executor of someone’s will comes with significant responsibilities, but also with specific limitations. One of the most common questions people have is whether an executor can decide who gets what from an estate. The short answer is no – an executor cannot decide how assets are distributed among beneficiaries. Let me break this down for you in detail so you understand exactly what executors can and cannot do.
What Is an Executor of Estate?
An executor (sometimes called a personal representative) is the person responsible for carrying out the instructions in a will and settling the deceased person’s estate. This important role involves managing assets, paying debts and taxes and distributing what remains to the rightful beneficiaries.
As someone who has helped friends go through this, I can tell you that it’s not always easy. The executor is basically the person who is legally in charge of the estate of the person who died until everything is settled.
What Powers Does an Executor Have?
When it comes to managing an estate, executors do have a lot of power. Some of their powers are:
- Locating the will and submitting it to probate court for validation
- Creating an inventory of assets and having them appraised
- Maintaining and securing assets during the probate process
- Paying off debts and taxes owed by the estate
- Selling certain assets if needed to pay debts (with some restrictions)
- Distributing inheritance according to the will’s instructions
- Petitioning the court to formally close the estate
Once appointed, the executor receives “letters of testamentary” from the probate court, which officially authorizes them to act on behalf of the estate.
What an Executor Cannot Do
Despite their authority, there are strict limitations on what an executor can do. Most importantly:
- Cannot change the will under any circumstances
- Cannot decide who gets what contrary to the will’s instructions
- Cannot sell assets below market value without beneficiary approval
- Cannot sell assets specifically willed to beneficiaries
- Cannot act in their own self-interest at the expense of beneficiaries
- Cannot distribute assets before paying the estate’s debts and taxes
- Cannot prevent beneficiaries from contesting the will
I’ve seen family members who didn’t understand what an executor was supposed to do think they had more power to make decisions than they actually do. The truth is that executors have to exactly do what the will says.
Can an Executor Change the Will?
This is worth emphasizing again: executors absolutely cannot change, override, or ignore the will in any way. They are legally bound to follow the deceased’s written instructions. Attempting to alter the will or distribute assets differently than specified would be considered tampering and could result in:
- Removal from the executor position
- Legal liability for any losses to beneficiaries
- Potential lawsuits from beneficiaries
- In some cases, even criminal charges
The executor’s duty is to honor the will as written, not to substitute their own judgment about who should get what.
Can an Executor Also Be a Beneficiary?
Yes! This is actually quite common. Executors are often family members or close friends of the deceased, and it’s perfectly normal for them to also receive an inheritance. Some examples include:
- A surviving spouse serving as executor while also inheriting assets
- An adult child managing their parent’s estate while also being a beneficiary
- A sibling handling estate matters while also receiving a portion
However, even when an executor is also a beneficiary, they still cannot favor themselves over other beneficiaries or change the distribution plan. They have a fiduciary duty to act in the best interests of the estate and all beneficiaries.
There’s no need to name a neutral third party as executor, like a lawyer, but some people do so to avoid possible conflicts of interest.
What Happens if There’s No Will?
If someone dies without a will (intestate), the executor role changes slightly. In these cases:
- The court appoints an “administrator” rather than an executor
- The administrator must follow state intestacy laws
- Distribution is determined by legal succession laws, not personal choice
- Family relationship to the deceased typically determines who inherits
Even without a will, the administrator still cannot decide who gets what – they must follow the relevant jurisdiction’s succession laws.
How Long Does an Executor Have to Settle an Estate?
There’s no universal timeline for settling an estate. The process can take anywhere from a few months to several years, depending on:
- The size and complexity of the estate
- Whether the will is contested
- Tax issues that need resolution
- Outstanding debts or legal matters
- The efficiency of the probate court in your area
If you’re a beneficiary waiting for your inheritance, it’s important to understand that executors must settle all debts and taxes before distributing assets. Specific bequests (like “I leave my diamond ring to my niece Sarah”) may be distributed earlier, but residual bequests (like “25% of my remaining estate”) won’t be paid until the estate is fully closed.
Executor vs. Other Estate Roles
It’s worth understanding how an executor differs from other estate-related roles:
Executor vs. Administrator
Both handle estate settlement, but an executor is named in the will while an administrator is appointed by the court when there’s no will or the named executor declines.
Executor vs. Trustee
A trustee manages assets placed in a trust, while an executor handles the entire estate. Their duties may overlap if the will creates a trust.
Executor vs. Power of Attorney
A power of attorney handles affairs while someone is still alive but incapacitated. The executor takes over after death. Often, the same person serves in both roles.
What Happens If an Executor Acts Improperly?
If an executor attempts to decide who gets what contrary to the will, or engages in other improper behavior, beneficiaries have legal recourse:
- Document the improper actions
- Attempt to resolve directly with the executor
- File a petition with the probate court to review the executor’s actions
- Request the executor’s removal if misconduct continues
- Sue for damages if the executor’s actions caused financial harm
I’ve seen situations where executors faced serious consequences for mismanaging estates or attempting to redirect assets to themselves or preferred beneficiaries. Courts take these duties very seriously.
Tips for Executors on Proper Asset Distribution
If you’re serving as an executor, here are some best practices to follow:
- Carefully read and understand the will before taking any action
- Communicate regularly with all beneficiaries about the process
- Keep detailed records of all estate activities and expenses
- Consult with an estate attorney if you have any questions
- Treat all beneficiaries equally according to the will’s terms
- Never commingle estate funds with your personal finances
- Get professional appraisals for valuable assets
- Obtain court approval before making any potentially controversial decisions
Final Thoughts
The role of executor comes with significant responsibility but limited discretion. While executors manage the estate settlement process, they cannot decide who gets what – they must follow the will’s instructions precisely. If there’s no will, they must follow state law.
If you’re creating your own estate plan, it’s important to choose an executor you trust to carry out your wishes. If you’re serving as an executor, understand that your primary duty is to honor the deceased’s instructions, not substitute your own judgment.
And if you’re a beneficiary concerned about an executor’s actions, know that the law provides protections to ensure you receive what was intended for you under the will.
The bottom line is simple: an executor’s job is to implement the deceased’s wishes as expressed in their will, not to decide who gets what based on their own preferences or judgments.
What is an Executor?
An executor of a will is the person the decedent appoints to oversee the estate once they pass away. The executor manages the probate process, which involves handling the decedent’s debts, taxes, and more. One of their primary responsibilities is distributing the deceased person’s estate assets to their beneficiaries. Usually, the decedent leaves specific instructions for the executor to follow. As the executor of the decedent’s will, this person is bound to carry out the will as the decedent defined.
Some other executor duties include:
- Filing the will with the probate court
- Taking inventory of the estate
- Appraising the total value of the estate
- Maintaining the decedent’s property until it is distributed or sold
- Communicating with beneficiaries
Being an executor and going through probate can be complicated, time-consuming, and expensive. So if you’re an executor and need help with probate, contact a probate attorney from Johnson Legal.
Can an Executor Decide Who Gets What?
Once the decedent passes away, it is the executor’s duty to carry out the will. They have many responsibilities and powers. However, the executor does not get to decide who gets what. It is the fiduciary duty of the executor to distribute the decedent’s estate funds as stated in the will. The executor does not have the power to go against the will or change what the will says.
But if the person who died doesn’t leave clear instructions in their will, the executor may be able to have some say in how the will is carried out. For example, the decedent may have instructions for their wealth but not their estate property. In this situation, the executor must follow the guidelines for the decedent’s funds, but they have to decide how to distribute the physical assets.
If you’re an executor of a will and have additional questions or concerns, it may be time to consult with an attorney.
Can an Executor Decide Who Gets What? by Seth Schlessel
FAQ
How much power does an executor have?
An executor holds significant, but not unlimited, power, acting as the deceased’s appointed agent to manage and distribute their estate according to the terms of the will and state laws. This power allows them to gather assets, pay debts and taxes, and sell property to fulfill the will’s instructions. However, an executor cannot make arbitrary decisions, go against the will, or act without court approval for certain major decisions like selling real estate.
Can an executor decide who gets what after death?
No, an executor cannot decide who gets what; their role is to carry out the instructions in the deceased person’s will or, if there’s no will, to follow state intestacy laws.
Can beneficiaries challenge an executor’s decisions?
A beneficiary can go to court to challenge an executor’s decisions when those decisions involve negligent mismanagement, failure to act when required to do so …May 5, 2025.
Can the executor of a will take everything?
Generally speaking, the executor of a will cannot take everything simply based on their status as executor. Executors are bound by the terms of the will and must distribute assets as the will directs. This means that executors cannot ignore the asset distribution in the will and take everything for themselves.
Can an executor decide how a will is distributed?
Finally, an executor has the power to distribute what remains of the estate to the beneficiaries. However, the executor cannot independently decide how the estate is distributed. They must follow the instructions in the will or the succession laws of the relevant jurisdiction. Can the executor change the will?.
What can an executor do if there is no will?
However, one thing an executor cannot do is decide how the inheritance is distributed. An executor is bound to follow the instructions laid out in the will. If there is no will, they have to follow the succession laws of the place where the person who died lived when deciding how to divide the inheritance. Table of Contents.
What powers does an executor have?
An executor also has the power to liquidate assets and sell property if it’s necessary for paying off any debts the estate may have. Finally, an executor has the power to distribute what remains of the estate to the beneficiaries. However, the executor cannot independently decide how the estate is distributed.
What does an executor do in a will?
An executor gets named in your will. An executor handles: An executor is someone that’s given the legal responsibility to take care of a decedent’s financial obligations. Executors get named in a will or are designated by the probate courts. They take care of everything from distributing property to paying debts and taxes.
What does an executor do if a house goes through probate?
Another often overlooked responsibility of an executor is maintaining and securing those assets in addition to having them appraised. So if a house forms part of the estate, then the executor is responsible for ensuring that the house remains in good condition and that the mortgage continues to be paid until the asset has gone through probate.
Can an executor settle an estate?
An executor of a will does not have the final say when it comes to settling an estate. The probate court has that power. It watches what the executor does and then gives them permission to close the estate after the inheritance has been given out. Being an executor is no walk in the park.