What Happens if an Executor Refuses to Probate?

By Timothy Mucciante

An executor has a duty to act in the best interest of the estate, and refusing to probate an estate may be cause for the executor to be removed. State probate laws differ, but the Uniform Probate Code, approved by the National Conference of Commissioners On Uniform State Laws, provides a general framework for handling an executor refusing to move the probate process along. In addition to removal, an executor may be held personally liable for breaching his fiduciary duty to the probate estate.

An executor has a duty to act in the best interest of the estate, and refusing to probate an estate may be cause for the executor to be removed. State probate laws differ, but the Uniform Probate Code, approved by the National Conference of Commissioners On Uniform State Laws, provides a general framework for handling an executor refusing to move the probate process along. In addition to removal, an executor may be held personally liable for breaching his fiduciary duty to the probate estate.

The Executor's Fiduciary Duty To The Estate

An executor's fiduciary duty requires him to act prudently and in compliance with state law and court orders – acting for the estate only how he would act in his own affairs. If the executor breaches this duty, he may be removed from his position and a successor executor appointed. Among the executor's duties are finding the decedent's assets, providing an inventory of these assets to the court, notifying potential creditors of their opportunity to make claims against the estate, disbursing assets to heirs and creditors and providing a final accounting to the court.

Protect your loved ones by a legally binding will. Make a Will Online Now

How An Executor Gets Appointed

An executor is named in the decedent's will, and upon the decedent's death, must submit his will to the probate court. Once the will is admitted to probate, the executor is formally given authority to manage the estate by the probate court. In some jurisdictions, the executor is known as a personal representative. A decedent dying without a will is referred to as having died intestate. Typically, the court appoints the decedent's spouse as the probate estate executor, or the next of kin if the decedent was not married, or if the spouse refuses to act as the executor.

Removal Of an Executor

An executor may be removed and replaced for breaching his fiduciary duty to the estate, and refusing to submit a will to probate may be a violation of this duty. Any interested person may file a petition with the court requesting the executor be removed for cause, and not probating the estate could be considered cause. Other causes for the removal of an executor include not acting in the best interests of the estate, intentionally misrepresenting facts or mismanaging the estate's assets.

Appointing a New Executor

Many times a will provides for a successor executor, or the court can appoint another individual as an executor. Appointment of a new executor may ultimately cause a significant delay in the distribution of estate assets to the heirs and creditors. A successor executor may have to start the entire probate process over, including filing an inventory, notifying creditors, distributing estate assets appropriately and preparing a final accounting for submission to the court.

Protect your loved ones by a legally binding will. Make a Will Online Now
What If the Executor of a Will Denies the Executorship?

References

Related articles

Can the Executor of a Will Spend the Money Any Way He Wants?

When someone dies and leaves a will, the will instructs how the deceased's property should be distributed. Likely, it will name the individual responsible for managing the estate, the estate’s personal representative, or executor. The executor has a duty to prudently manage the estate so that debts are paid and each beneficiary receives his due distribution.

If an Executor Is Not Available Who Could Execute a Will?

The executor is the person named in a will to administer an estate and fulfill the terms of the will, upon the passing of the will maker, or testator. However, a named executor may decline to take on the role of executor, or in some cases, may be deceased or simply unable to fulfill the role. A well-written will typically has provisions for these circumstances, or in the absence of these provisions, the court may intervene.

What Can I Do if the Executor of the Estate Doesn't Pay Me as an Heir?

You are due an inheritance, but you have a problem with the way the executor is doing his job. Depending on the estate in question and the laws of the state, the probate process can be quite complex, but there is a structure to the process. Distribution of the assets of the estate to beneficiaries named in the will or to heirs under intestate succession usually come at the end.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

How to Get an Executor to Probate a Will

If you are expecting to receive property after the death of a loved one, you may be in a hurry for probate to start. ...

What Do You File When the Executor Refuses to Open Up an Estate?

A probate estate is administered by a “personal representative,” which is a term that includes both ...

What Happens After an Estate Has Been Probated?

Whether a person dies with our without a will, in most cases, his estate must go through the probate process. Although ...

Reasons to Remove an Executor in PA

An executor is the person named in a will to carry out a person's wishes after death. As the name suggests, the ...

Browse by category