Probate is the process whereby a person’s estate is administered and distributed after their death. Probate laws vary depending on the state. If a person executed a valid will before they died, an executor was most likely named in the document. The executor is entrusted with carrying out each step of the probate process to ensure the deceased person’s wishes are properly carried out. If a person dies without a will, or intestate, the court will name an administrator to oversee the probate process.
The Executor’s Duties
The executor is expected to marshal the assets of an estate as part of a complete inventory. Depending on the size and overall value of the estate, the executor will pay any applicable taxes and remaining debt to the decedent’s creditors. The funds for these payments are taken out of the estate. If the debt is greater than the value of the estate, individual items can be sold to cover those obligations, which could leave a beneficiary without an inheritance at all. The executor owes a duty to the beneficiaries of the estate to preserve the value of the estate to the greatest extent possible.
Distribution of the Estate
The length of time it takes to successfully complete the probate process can depend on the complexity of the estate, as well as state law. In most cases, beneficiaries should expect to receive their portion of the estate in a timely manner, but ownership will not transfer until the end of the probate process. Remaining assets are distributed in accordance with the terms of the will or the state’s intestate laws.
Although you would expect the executor -- especially if chosen specifically by the deceased -- to carry out his or her duties with the utmost care and respect, mismanagement of an estate is not unprecedented. If an heir or beneficiary believes the executor is not fulfilling her legal obligations, a petition can be filed with the court for either a complete accounting of the estate’s assets or removal of the executor in a serious case of mismanagement. An executor who is violating his duties can be held in contempt of court, which can carry fines and even a jail sentence. The heirs or beneficiaries can also pursue a civil lawsuit to recover lost or stolen assets, and legal fees.