How to Get an Executor to Probate a Will

by Shelly Morgan
Probate is a time-consuming process that can last for months.

Probate is a time-consuming process that can last for months.

Jupiterimages/Comstock/Getty Images

If you are expecting to receive property after the death of a loved one, you may be in a hurry for probate to start. Settling the affairs of an estate is a time-consuming process. Sufficient time must be given so that all parties are properly notified and all necessary precautions taken. In rare instances, an executor may act negligently, causing unnecessary delays. Under such circumstances, the law provides you with a remedy.

Understanding Probate Terms

Probate courts refer to the deceased person as the decedent or testator. The decedent’s property is the estate. Probate is the process of filing a will with the court, appointing an executor, determining the assets that make up the estate, paying off the debts of the estate and carrying out the wishes of the decedent. An executor is the person who performs these duties; the terms executor and personal representative are interchangeable. The executor is generally named in the will, but the probate court can appoint someone if the will is silent on this issue or the named executor is unable to serve.

Beginning the Process

The probate process begins when the custodian of the will or named executor files the will in probate court. State laws vary as to when probate must be opened. For example, Alabama law requires a will to be filed within five years of the decedent’s death. In contrast, under California law, the executor must file both the will and a Petition for Probate within 30 days of learning of the death, but any person who is not the executor, with an interest in the will, may commence proceedings at any time.

Opening Probate

Probate does not have to be opened by the executor. This step can be performed by anyone with an interest in the estate, such as a beneficiary, heir or creditor of the decedent. This is common if an executor has not been named or if the named executor fails to act. Most states provide the necessary forms online and provide instructions on how to complete and file them. Once the forms are completed, they must be filed in the appropriate probate court, which is typically the probate court in the county where the decedent died or owned property. Once probate is opened, the court formally appoints an executor. If the executor declines appointment, the court will appoint an administrator for the estate.

Probate Deadlines

The opening of probate sets a series of deadlines in motion. The executor has a deadline for identifying the assets of the estate and filing an inventory with the court. He's subject to a deadline to file an affidavit indicating that he has published a notice to the creditors in the proper newspaper. The creditors have a deadline within which they must file a claim against the estate. Lastly, the executor has a deadline for filing a final tax return for the estate if the estate earned any taxable income during the probate process.

Removing an Executor

An executor has a fiduciary duty to the estate. She must preserve and protect the estate, handle all transactions carefully, expedite settlement and be fair and impartial. Anyone with an interest in an estate can petition to have an executor removed. For example, in California, a court will remove an executor if they have wasted, embezzled, mismanaged, or committed fraud on the estate. California courts can also remove an executor who is incapable of properly executing the duties of the office or who has wrongfully neglected the estate.

Suing an Executor

If removing an executor is not an adequate remedy, you can bring suit against the executor to recover losses you may have suffered. In many instances, courts require an executor to post a bond against such an eventuality. This bond is for the benefit of interested parties and allows them to recover losses they may have sustained because of the executor's actions. In California, the bond requirement can be waived only if all the beneficiaries agree to waive it or the will specifically allows the executor to serve without bond. In Connecticut, courts may waive the bond requirement for estates valued at less than $20,000.