Can an executor of an estate that's been defined by a will buy and sell assets of an

[George W]

Can an executor of an estate that's been defined by a will buy and
sell assets of an estate if all beneficiaries say it's OK and the
value of the estate isn't reduced? The executor is the son of the
decedent. He has one sister and they both get everything 50 - 50.

I just read this frequently asked question on a website:
==========
"14. When A Person Dies, Are His Assets All "Frozen" and Unavailable
to the Family?

In the overwhelming number of cases involving joint and survivorship
assets between the decedent and family members, funds are immediately
available to the survivors without court approval.

However, assets in the name of the decedent alone may not be used
until an executor or administrator is appointed, which, in most cases,
takes only one to two weeks. (In an emergency, the Court can provide
immediate relief.)

Thereafter, such assets may be used to pay proper debts and expenses.
A family car may be used immediately with permission of the Court. In
addition, if all the heirs consent, an estate can be opened in a
single day so that the estate's funds can be accessed without delay.

Even though these assets may be available immediately to the family,
with or without court action, they still must be properly accounted
for so that the claims of creditors and the State Tax Department are
properly handled."
==========
I asked an attorney if the assets of an estate can be accessed and
used to make a purchase before all probate proceedings are completed.
I said all the beneficiaries in the will are OK with the purchase. The
attorney said no. That seems to contradict what's being said above.

I asked another attorney the same question but asked if the purchase
can be of real estate property in another state. That lawyer said
that the purchase in state would be OK, but not the out of state
purchase because each state has a different probate court. I asked
since the decedent is already dead, how another state's probate comes
into play. The lawyer told me to get a lawyer - in effect dodging the
answer.

The answer to the frequently asked question above is written by a
judge in a state office of probate administration. It's not just one
judge, it's not just one lawyer, it's the state's department of
probate administration answering the question on the department's
website. I would think this is an accurate answer. Otherwise it
wouldn't be on public display in their website.

Who do I believe?

What does "involving joint and survivorship assets between the
decedent and family members" mean?

In the statement "an estate can be opened in a single day", what does
"opened" mean?

I appreciate your feedback and assistance.

George W

[Dan Evans]

On 8 Sep 2003 16:26:05 -0700, dmrg@aaahawk.com (George W) wrote:

Can an executor of an estate that's been defined by a will buy andsell assets of an estate if all beneficiaries say it's OK and thevalue of the estate isn't reduced?

The executor is a fiduciary for the beneficiary.

That means that his (or her) primary duty is to the beneficiaries.

If the beneficiaries say it's all right, then it's all right.


**Dan Evans
**I post information, not advice.

[Richard]

George W wrote:>>

Can an executor of an estate that's been defined by a will buy and sell assets of an estate if all beneficiaries say it's OK and the value of the estate isn't reduced? The executor is the son of the decedent. He has one sister and they both get everything 50 - 50.
I just read this frequently asked question on a website:

In cases where one heir is the executor, and all others agree as to what he
can do, yes it's legal.
About the only thing that makes it a hassle is paying the state taxes on
everything.
BTW, the answer is in the response.

[McGyver]

"George W" <dmrg@aaahawk.com> wrote in message
news:f76ec1f.0309081526.2629a05@posting.google.com ...

Can an executor of an estate that's been defined by a will buy and sell assets of an estate if all beneficiaries say it's OK and the value of the estate isn't reduced? The executor is the son of the decedent. He has one sister and they both get everything 50 - 50.

Probably not. I'm assuming that your words "defined by a will" mean that
the executor is named in the will, but the probate court has not issued
anything to establish that the nominated
executor is officially the executor. Until that happens, the nominated
executor can do nothing except preserve and protect assets and submit the
will to probate.

The consent of named beneficiaries is not relevant before the executor is
named. After the executor has been confirmed as such by the probate court,
consent of the beneficiaries is important because it will help persuade the
judge to give the executor permission to do whatever it is the executor and
the beneficiaries are asking for. But even with consent of the
beneficiaries, the executor cannot sell land or in any other way dispose of
estate assets without the court's consent.

McGyver

[Dan Evans]

On Tue, 9 Sep 2003 14:22:55 -0700, "McGyver" <Greyprof@msn.com> wrote:

"George W" <dmrg@aaahawk.com> wrote in messagenews:f76ec1f.0309081526.2629a05@posting.goo gle.com...

Can an executor of an estate that's been defined by a will buy and sell assets of an estate if all beneficiaries say it's OK and the value of the estate isn't reduced? The executor is the son of the decedent. He has one sister and they both get everything 50 - 50.

Probably not. I'm assuming that your words "defined by a will" mean thatthe executor is named in the will, but the probate court has not issuedanything to establish that the nominatedexecutor is officially the executor.

That's an odd assumption.

I took "an estate that's been defined by a will" to mean nothing more
than that the estate is to be distributed according to a will, and not
by the laws of intestacy.

You are correct that an executor is not an executor until he or she
receives letters from the appropriate authority (a point that escapes
some people), but that point doesn't have anything to do with the
question presented by the poster, which suggested that the executor
was going to engage in acts of self-dealing, buying and selling estate
assets to and from himself.

After the executor has been confirmed as such by the probate court,consent of the beneficiaries is important because it will help persuade thejudge to give the executor permission to do whatever it is the executor andthe beneficiaries are asking for.

You're assuming that the consent of the court is needed. In many
states, the parties only go to court when there is a dispute, and
there is no dispute if all of the beneficiaries agree.


**Dan Evans
**I post information, not advice.

[Guest]

On Tue, 9 Sep 2003, "McGyver" <Greyprof@msn.com> wrote:

"George W" <dmrg@aaahawk.com> wrote:

Can an executor of an estate that's been defined by a will buy and sell assets of an estate if all beneficiaries say it's OK and the value of the estate isn't reduced? The executor is the son of the decedent. He has one sister and they both get everything 50 - 50.

Probably not. I'm assuming that your words "defined by a will" mean that the executor is named in the will, but the probate court has not issued anything to establish that the nominated executor is officially the executor. Until that happens, the nominated executor can do nothing except preserve and protect assets and submit the will to probate.

Making the stated assumption is understandable from a careful
attorney. So is the related implication that a still just "nominated"
but not yet court- (or, in some jursidictions, like judicial officer-)
appointed/approved executor who "does something" (i.e.,. who does not
"do nothing except preserve and protect assets and submit the will to
probate") MIGHT be subject to sanction, IF there were an interested
party (whether a beneficiary or provably damaged creditor) who
complained.

But the OP's core premises are that all affected beneficiaries agree
(including, implicitly, that there will have been suffient disclosure
to the sister as beneficiary suffient to defeat fraud or
conflict-of-interest claims) and also that creditors would not be
damaged by the contemplated transaction.

Why, then, the "Probably not"?

If, as the OP says, all the affected beneficiaries freely agree not
influenced by any wrongful act or omission by the person nominated
(even if not yet formally appointed/qualified) as executor (other
than, on the facts as posited, an arguably just formalistic claim that
he ought not have acted as if "executor" if he had not yet been
formally qualified as such), and if the result will not impair
whatever may be the value of the estate in terms of the ability to pay
justly due creditor claims, who would complain?

Is this "Probably not" guesstimate intended to suggest, in other
words, that, even if one were to assume the benficiaries and third
party creditors will receive whatever they would have as if whatever
is the contemplated transaction had not occurred ("the value of the
estate [won't be] reduced"), it is not very common (especially for
estates involving closely related adult beneficiaries), though it _is_
common, for all the beneficiaries to agree and also, if/where/when
resort to a court is appropriate, for the court having jurisidction to
approve, retroactively, all the executor's (even if otherwise arguably
extra-legal) acts with respect to the estate?

The consent of named beneficiaries is not relevant before the executor is named.

Not only is the consent of (if competent and not defrauded)
beneficiaries "relevant" but, most of the time, will (assuming payment
of third-party creditor claims and no-diminuition of otherwise
distributed beneficiary entitlements) almost also be dispositive.
Indeed, also very common, especially in intra-family situations, is
consent by a sibling beneficiary to another sibling beneficiary being
given from estate assets more than the underlying will otherwise
directs.

Nonetheless, questions raised but insuffiently addressed by the OP are
why (especially if the OP has in mind some sort of transcations for
the OP's own benefit) the brother/executor would not just distribute
the estate's net assets then have each of the parties, now as owner of
whatever it is that the distribution makes each owner of, proceed on
his or her own and also whether (as noted) his sister's "OK" will have
been obtained by way of suffient disclosures/waiver such that he will
not be exposed to later adverse claims by her.

After the executor has been confirmed as such by the probate court, consent of the beneficiaries is important because it will help persuade the judge to give the executor permission to do whatever it is the executor and the beneficiaries are asking for.

This certainly is so as a general matter, if there are circumstances
(which in frequently occur) for which an executor ought seek and
obtain court approval for some transaction affecting estate assets;
and (as noted) the cautious/punctillious executor will often want to
obtain such judicial approval. Correlatively, however, there are some
U.S. jurisdictions in which this sort of thing is neither common nor
required (and some circumstances in which a court might, for policy
reasons, decline to provide approval which, however, might not be
necessary anyway).

In some cases, moreover, not merely is seeking such judicial approval
thus not merely superfluous but can also be an occasion for abuse,
e.g., if what actually are avoidable attorneys fees are nevertheless
incurred (yet there have been cases in which some estates lawyers
recommend such an application mostly to generate such fees for
themselves), especially when (as the OP seems to suggest is so for him
and his sister) the beneficiaries, one of whom is the executor
(whether already approved/appointed or only still nominated), have
good reason to trust one another and wish to act in what they all
agree is a practical manner.

But even with consent of the beneficiaries, the executor cannot sell land or in any other way dispose of estate assets without the court's consent.

The "cannot" often applies if the person nominated as executor has not
been appointed or otherwise qualified as such, since s/he would not
have the authority in such circumstances to convey title if the
property sought to be conveyed is then still titled in the name only
of the deceased.

But if the executor has been formally appointed or has otherwise
qualified -- e.g., if "Letters" or like jurisdiction-specific
authority have been issued -- why is "the court's consent" needed (or,
in some places, even likely to be available) if the transaction is
"with consent of the [if: competent] beneficiaries"?

[McGyver]

<nospam@isp.com> wrote in message
news:3f5f3028.54183815@news.east.earthlink.net...

On Tue, 9 Sep 2003, "McGyver" <Greyprof@msn.com> wrote:

"George W" <dmrg@aaahawk.com> wrote:

Can an executor of an estate that's been defined by a will buy and sell assets of an estate if all beneficiaries say it's OK and the value of the estate isn't reduced? The executor is the son of the decedent. He has one sister and they both get everything 50 - 50.

Probably not. I'm assuming that your words "defined by a will" mean that the executor is named in the will, but the probate court has not issued anything to establish that the nominated executor is officially the executor. Until that happens, the nominated executor can do nothing except preserve and protect assets and submit the will to probate.

Making the stated assumption is understandable from a careful attorney. So is the related implication that a still just "nominated" but not yet court- (or, in some jursidictions, like judicial officer-) appointed/approved executor who "does something" (i.e.,. who does not "do nothing except preserve and protect assets and submit the will to probate") MIGHT be subject to sanction, IF there were an interested party (whether a beneficiary or provably damaged creditor) who complained.
But the OP's core premises are that all affected beneficiaries agree (including, implicitly, that there will have been suffient disclosure to the sister as beneficiary suffient to defeat fraud or conflict-of-interest claims) and also that creditors would not be damaged by the contemplated transaction.

That core premise about the creditors might be the poster's core premise,
but that doesn't change whether the nominated executor may buy and sell
assets of the estate. The law in California requires notice to creditors.
The creditors are given time to file claims against the estate. The law
requires that estate assets not be disposed of until after the passage of
time for creditor claims. The law requires that the executor, and not the
nominated executor, decide what to do with assets pending a final
distribution order. These rules don't apply to small estates, which may be
handled without probate.

Why, then, the "Probably not"? If, as the OP says, all the affected beneficiaries freely agree not influenced by any wrongful act or omission by the person nominated (even if not yet formally appointed/qualified) as executor (other than, on the facts as posited, an arguably just formalistic claim that he ought not have acted as if "executor" if he had not yet been formally qualified as such), and if the result will not impair whatever may be the value of the estate in terms of the ability to pay justly due creditor claims, who would complain?

In California, when the executor submits the final distribution plan, the
probate attorney (I mean the one working for court, not the attorney for the
executor) will send the application through to the judge with
recommendations, including a recommendation about sanctions, without any
need for any complaint or objection from a beneficiary or creditor. The law
requires court approval of disposition of assets prior to a final
distribution order. Sanctions would be appropriate, and in California
inevitable, I think, if the executor disposes of assets without court
approval. I defended an executor in a sanctions hearing in probate court,
arising from the fact that the executor took too long to move the probate to
closure. There was no complaint or objection from any other beneficiary.
The court's probate attorney recommended sanctions even though the other
beneficiaries had consented in writing to all actions of the executor,
including the delay. I won because I had good reasons for the delay, not
because the other beneficiaries had consented in writing. Disposing of
assets without approval is much worse than delay.

Is this "Probably not" guesstimate intended to suggest, in other words, that, even if one were to assume the benficiaries and third party creditors will receive whatever they would have as if whatever is the contemplated transaction had not occurred ("the value of the estate [won't be] reduced"), it is not very common (especially for estates involving closely related adult beneficiaries), though it _is_ common, for all the beneficiaries to agree and also, if/where/when resort to a court is appropriate, for the court having jurisidction to approve, retroactively, all the executor's (even if otherwise arguably extra-legal) acts with respect to the estate?

"Probably not" means only that the poster is probably a nominated executor
and not an appointed executor. The nominated executor has no right to
decide for himself that he is going to be qualified to be appointed. Or
that the will is valid. Or that the will qualifies as a will by the state's
definition. Or that notice to creditors need not be published prior to
selling estate assets. Or that there are no other relatives who might have
a claim (like a wife, former wife, child that the nominated executor doesn't
know about) and who might be interested in the published notice required by
law. The nominated executor has no right to sell anything belonging to
someone else, and no right to use estate assts to "buy", and has no right to
interfere in any other way with the ownership of the assets of the decedent.
(other than to preserve and protect.)

The consent of named beneficiaries is not relevant before the executor is named. Not only is the consent of (if competent and not defrauded) beneficiaries "relevant" but, most of the time, will (assuming payment of third-party creditor claims and no-diminuition of otherwise distributed beneficiary entitlements) almost also be dispositive.

Relevant and perhaps dispositive AFTER the exactor is appointed. Irrelevant
until then.

Nonetheless, questions raised but insuffiently addressed by the OP are why (especially if the OP has in mind some sort of transcations for the OP's own benefit) the brother/executor would not just distribute the estate's net assets then have each of the parties, now as owner of whatever it is that the distribution makes each owner of, proceed on his or her own and also whether (as noted) his sister's "OK" will have been obtained by way of suffient disclosures/waiver such that he will not be exposed to later adverse claims by her.

Distribute the estate's net assets? I know you don't mean distribute before
being appointed executor.

After the executor has been confirmed as such by the probate court, consent of the beneficiaries is important because it will help persuade the judge to give the executor permission to do whatever it is the executor and the beneficiaries are asking for. This certainly is so as a general matter, if there are circumstances (which in frequently occur) for which an executor ought seek and obtain court approval for some transaction affecting estate assets; and (as noted) the cautious/punctillious executor will often want to obtain such judicial approval. Correlatively, however, there are some U.S. jurisdictions in which this sort of thing is neither common nor required (and some circumstances in which a court might, for policy reasons, decline to provide approval which, however, might not be necessary anyway).
In some cases, moreover, not merely is seeking such judicial approval thus not merely superfluous but can also be an occasion for abuse, e.g., if what actually are avoidable attorneys fees are nevertheless incurred (yet there have been cases in which some estates lawyers recommend such an application mostly to generate such fees for themselves), especially when (as the OP seems to suggest is so for him and his sister) the beneficiaries, one of whom is the executor (whether already approved/appointed or only still nominated), have good reason to trust one another and wish to act in what they all agree is a practical manner.

But even with consent of the beneficiaries, the executor cannot sell land or in any other way dispose of estate assets without the court's consent.

The "cannot" often applies if the person nominated as executor has not been appointed or otherwise qualified as such, since s/he would not have the authority in such circumstances to convey title if the property sought to be conveyed is then still titled in the name only of the deceased. But if the executor has been formally appointed or has otherwise qualified -- e.g., if "Letters" or like jurisdiction-specific authority have been issued -- why is "the court's consent" needed (or, in some places, even likely to be available) if the transaction is "with consent of the [if: competent] beneficiaries"?

Court consent is needed only if the law requires it. In California it does.
(Not considering the small estates exception) If there are jurisdictions in
which the law allows an executor to dispose of assets without a distribution
order or other probate court approval, then the executor may do so.

McGyver

[McGyver]

"Dan Evans" <dan@evans-legal.com> wrote in message
news:hgjslvcrhvdae0r1r4427243e9i5adl0pi@4ax.com...

On Tue, 9 Sep 2003 14:22:55 -0700, "McGyver" <Greyprof@msn.com> wrote:

"George W" <dmrg@aaahawk.com> wrote in messagenews:f76ec1f.0309081526.2629a05@posting.goo gle.com...

Can an executor of an estate that's been defined by a will buy and sell assets of an estate if all beneficiaries say it's OK and the value of the estate isn't reduced? The executor is the son of the decedent. He has one sister and they both get everything 50 - 50.

Probably not. I'm assuming that your words "defined by a will" mean thatthe executor is named in the will, but the probate court has not issuedanything to establish that the nominatedexecutor is officially the executor.

That's an odd assumption. I took "an estate that's been defined by a will" to mean nothing more than that the estate is to be distributed according to a will, and not by the laws of intestacy.

You could be right. The poster might have meant nothing more than that.
But when the question concerns the right of an executor to buy and sell, I
don't see any difference between assets that are in an estate in a probate
in which a will is being probated, and assets that are in an estate that is
being probated on the basis of intestate succession. So it seemed to me to
be an odd question for a person who has been appointed as executor by a
probate court. My speculation that maybe the poster might be a nominated
and not yet appointed executor might be wrong.

You are correct that an executor is not an executor until he or she receives letters from the appropriate authority (a point that escapes some people), but that point doesn't have anything to do with the question presented by the poster, which suggested that the executor was going to engage in acts of self-dealing, buying and selling estate assets to and from himself.

After the executor has been confirmed as such by the probate court,consent of the beneficiaries is important because it will help persuade

the

judge to give the executor permission to do whatever it is the executor

and

the beneficiaries are asking for. You're assuming that the consent of the court is needed. In many states, the parties only go to court when there is a dispute, and there is no dispute if all of the beneficiaries agree.

You could be right about many state.

McGyver