6 Executor Mistakes in California That Can Cost Beneficiaries Their Inheritance

by Michael Hackard

Publication Date November 6, 2026 in Beneficiary Disputes

A court appointment can make an executor sound more accountable than he really is. Consider a woman I’ll call Joan, whose story is a composite of situations I see, with the details changed. Joan’s brother was named executor in their mother’s will. He filed the petition, the court appointed him, and he received Letters Testamentary, so he had real legal authority. Then he stopped returning her calls. Eighteen months later, she learned that he had paid himself a “management fee” out of the estate account without any court order, and had handed some of their mother’s property to himself and a cousin while a creditor’s claim was still unpaid. When she finally reached him, he told her everything was under control.

It was not. Each of those acts is a problem under California law, and together they are the raw material for a petition to remove him and a claim to make him repay the estate personally. Joan had also lost something harder to measure: a year and a half in which nobody was protecting her share.

Executor mistakes in California rarely start with malice. In my experience, they come from overconfidence, family pressure, and a basic misunderstanding of what the law requires. I am writing this for the people on the receiving end of those mistakes. If you are a beneficiary watching an estate drift and wondering whether anyone is going to do anything about it, this is for you.

When an Executor Makes Mistakes in California, Beneficiaries Pay the Price

Executor errors delay inheritances, shrink estates, expose family members to personal liability, and generate litigation that consumes years and legal fees. We represent beneficiaries when executors get it wrong, and the pattern of mistakes is consistent enough that naming them clearly is the most useful thing I can do here.

The mistakes fall into six categories: delay, premature distribution, communication failure, tax errors, asset mismanagement, and disregarding the will. Each one causes real financial harm, and each one has a remedy under California law. Knowing both the harm and the remedy is what lets a beneficiary act.

Mistake 1: Delaying the Probate Process Without Justification

The death certificate is not legal authority. Being named in the will is not legal authority. The family’s agreement that someone is in charge is not legal authority. Under Probate Code section 8400, a person has no power to administer the estate until the court appoints them and the appointment becomes effective, which happens when Letters are issued. Before then, a named executor may only pay funeral expenses and take the steps needed to maintain and preserve the estate.

Once Letters issue, several clocks start. The inventory and appraisal must be filed within four months after Letters are first issued (section 8800). Creditors shall make claims by the later of four months after Letters are first issued or 60 days after notice is received or delivered to them (section 9100).  Within one year from the Letters’ issue, or 18 months if a federal estate tax return is necessary, the executor shall either petition for final distribution or file a report on the status of the administration (section 12200). The California probate timeline after hiring a lawyer is built around those dates, and they do not pause because the executor is busy or uncomfortable with conflict.

Beneficiaries have tools when an executor drags his feet. The court may require an account upon the petition of any interested person and may remove an executor who “has wrongfully neglected the estate, or has long neglected to perform any act as personal representative” (section 8502). The financial costs of delaying action against a bad trustee apply with equal force to executors. Every month of inaction has a price, and the beneficiaries usually pay it, not the person who caused the delay.

Mistake 2: Distributing Assets Before Satisfying Estate Obligations

This is what Joan’s brother did. He handed out property while a creditor’s claim was still open. California sets the order in which an estate’s debts are paid when there is not enough to go around. Under Probate Code section 11420, the classes are paid in this order: expenses of administration; debts secured by a mortgage, deed of trust, or other lien, paid from the property that secures them; funeral expenses; expenses of the last illness; the family allowance; wage claims; and then general debts, including judgments that are not secured by a lien. Debts owed to the United States or to California that have priority under federal or state law, such as certain taxes, are given that priority. No class may be paid until every class ahead of it is paid in full.

Beneficiaries come after the debts. Even an executor with independent administration powers needs court supervision for preliminary and final distributions (section 10501), apart from small, limited distributions that are allowed only after the creditor claim period has run and only if creditors will not be harmed (section 10520).

An executor who pays beneficiaries ahead of creditors is exposing himself personally. A personal representative who breaches a fiduciary duty is chargeable with the loss that results (section 9601), and one who fails to pay a debt the court has ordered paid is personally liable for it (section 11424). The beneficiaries who received early distributions are not always safe either. In some circumstances, a person who received estate property is personally liable to a creditor who was never given proper notice, up to the value of what they received (section 9392). The three biggest mistakes in California probate and estate litigation consistently include this one.

Mistake 3: Failing to Communicate With Beneficiaries

Over my 40 years of practice in California estate litigation, I have found that a breakdown in communication is often a telltale symptom of a conflict that may wind up in court. Beneficiaries who are informed can disagree with decisions. Overlooked beneficiaries hire attorneys.

It helps to be precise about what the law requires. The broad duty to keep beneficiaries “reasonably informed” belongs to trustees, under Probate Code section 16060. An executor’s information duties are more specific, and they are enforceable. Before anyone is appointed, each known heir and each beneficiary named in the will must receive notice of the hearing at least 15 days in advance (section 8110). The inventory and appraisal must be filed with the court within four months after Letters issue (section 8800). And any interested person may file a request for special notice, which entitles them to notice of filings such as petitions, inventories, accounts, and status reports (section 1250). If you have not filed a request for special notice, file one.

The most common practical failures we find include an executor who never tells the family that probate has been filed, refuses to disclose the inventory, gives no update on creditor claims, and ceases responding to calls and emails. Every one of those failures gets on the record. When we pursue executor removal for California misconduct, communication failures are rarely the only ground, but they are often the pattern that makes every other breach more credible.

Mistake 4: Tax Failures That Damage the Estate

Two tax mistakes operate differently and deserve separate treatment.

The first is the portability election. Federal law lets a surviving spouse use the deceased spouse’s unused estate tax exclusion, but only if the executor elects it on a timely filed federal estate tax return, Form 706, even when no estate tax is owed. The return is due nine months after the date of death, and an automatic six-month extension is available. If the deadline is missed, the options depend on the size of the estate. For an estate that was not otherwise required to file a return, the IRS allows a late portability election up to the fifth anniversary of the death under Revenue Procedure 2022-32. After that, the estate has to ask the IRS for discretionary relief under Treasury Regulation section 301.9100-3. The simplified five-year route is not available to estates that were required to file in the first place. In a high-value California estate, losing the election can cost a surviving spouse a great deal of future tax protection. The common estate planning mistakes families make in California often set up this failure, but it is the executor who misses the deadline.

The second tax mistake is distributing assets before federal and state tax obligations are resolved. Tax debts that carry priority under federal or state law come ahead of the ordinary classes of debt. An executor who writes distribution checks before those obligations are identified, and then discovers the estate owes more than it kept back, has created a loss that can be charged to him.

Mistake 5: Mismanaging Estate Assets

Asset mismanagement is a broad area, yet three distinct failures make up most of the lawsuits.

The first is a partial inventory. The executor has to locate, appraise, and take inventory of the probate assets within four months. Many executors may not grasp the difference between probate assets and assets that pass outside of probate. Life insurance with a named beneficiary, retirement accounts with beneficiary designations, and payable-on-death accounts generally pass directly to the named beneficiaries. The executor has no authority over them. Missing true probate assets is the opposite problem, and it leaves gaps that delay the administration and expose the executor to a surcharge.

The second is commingling. Under Probate Code section 9600, the executor has management and control of the estate and must use ordinary care and diligence. An executor who breaches a fiduciary duty is chargeable with any resulting loss, any profit he made through the breach, and any profit the estate would have earned (section 9601). Mixing estate money with personal money is one of the clearest breaches I see. It is also a classic removal ground, because the court can remove an executor who has “wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so” (section 8502). Using estate funds for personal bills, borrowing from the estate, and buying estate property without court supervision (which section 10501 requires for any sale of estate property to the executor) usually travel together.

The third is overreaching into non-probate assets. An executor who tries to redirect a life insurance payout or a payable-on-death account, or to delay its transfer, is acting without legal authority.

Mistake 6: Ignoring or Overriding the Will’s Instructions

California Probate Code section 21102 provides that the intention of the transferor, as expressed in the instrument, controls the legal effect of the gifts it makes. The executor does not get to decide that a different distribution would be fairer or more practical. When the will’s language is genuinely ambiguous, the right move is to ask the probate court, not to decide privately or poll the family about what the decedent probably meant.

Self-dealing is a separate and more serious problem. An executor who buys estate property at a low price, pays himself fees the court has not allowed, or steers business opportunities away from the estate is setting up a removal petition and a surcharge claim. Executor compensation is fixed by statute as a percentage of the estate: 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, and smaller percentages above that (section 10800). Even then, the executor needs a court order to take it, and can petition for a partial allowance only after four months from the issuance of Letters (section 10830). The common acts of fraud in California trust, estate, and probate litigation frequently involve executor self-dealing. I have seen executors who genuinely believed they had earned extra pay for a difficult job. The law does not share that view without a court order.

A word about advice. Many executors make these mistakes because a friend or relative who “went through probate once” told them it was fine. The estate administration myths that California families believe are behind many well-intentioned but harmful decisions. Relying on bad advice does not shield an executor. The court may excuse an executor who acted reasonably and in good faith, but that is discretionary (section 9601), and the errors tend to compound: a delay leads to a missed creditor, which leads to a premature distribution, which leads to a claim.

What California Law Allows Beneficiaries to Do When Executors Make These Mistakes

Beneficiaries are not passive observers in California probate, and waiting rarely improves the situation.

The first tool is an account. On its own motion or on the petition of an interested person, the court may order the executor to account at any time, and it must order an account if the petition comes more than a year after Letters are issued and no account has been filed (section 10950). Keep a record of every request you make and every unanswered call. That record becomes evidence.

The second mechanism is a petition for removal. Section 8502 reasons include mismanagement, improper neglect of the estate, protracted negligence to act, and any scenario where removal is necessary to protect the estate or the people interested in it. Removal is never certain. You have to make the case, but when the facts support it, the law provides a clear path.

The third tool is a surcharge. A surcharge is a court order requiring the executor to compensate the estate personally for losses caused by a breach of duty. Unauthorized fees, losses from delay, and improper distributions can all be the subject of a surcharge claim.

Joan’s facts touch all three: fees taken without a court order, distributions made while a claim was unpaid, and long silence after appointment. A court would weigh the evidence and the executor’s explanations. Nothing about the outcome is automatic, but those are exactly the facts the law was written to address, and they are the work we do in California estate and trust disputes.

One thing that stops beneficiaries from acting is the assumption that litigation is out of reach. We handle many of these cases on a contingency fee basis. We offer free case evaluations, and no attorney’s fees are owed unless we recover compensation; clients may be responsible for case-related costs and expenses.

In my experience, many executors who end up in court did not set out to steal. They were in over their heads, made decisions without understanding the consequences, and left the beneficiaries to absorb the cost. California law does not excuse that because the intentions were good. Beneficiaries who understand their rights and act on them have a real chance of making the estate whole.