Can You Remove an Executor if Ancillary Probate Is Not Filed?

By Jeff Franco J.D./M.A./M.B.A.

When a decedent names you as a beneficiary in his will, you may not be able to claim your inheritance until the will is probated. Probate is the legal process through which an estate in settled. Once a petition for probate is filed and the will is presented to the court, the judge appoints an executor, who is typically named in the will. The executor has the responsibility of managing and distributing the estate throughout the probate process. In certain cases, the executor's duties may include filing for ancillary probate proceedings. If ancillary probate is necessary, but the executor doesn’t initiate the proceedings, removal of the executor may be possible.

Ancillary Probate Proceedings

If the will includes property located in states other than the decedent's state of residence, the executor may need to file for probate proceedings in each jurisdiction where the decedent owned property. This is known as ancillary probate. This is most commonly used when the decedent owned real property in another state, but it can also apply to personal property as well.

Reason for Removal

If the executor of the will fails to file for ancillary probate proceedings that need to occur before the estate property subject to the ancillary probate can be distributed, you can petition the probate court to remove the executor. However, you must be able to show that the ancillary probate is, in fact, necessary; the failure of the executor to file the will in the other state’s probate court is unnecessarily delaying the distribution of estate property; and the executor’s failure to file for ancillary probate is due to his incompetency, lack of attention or overall incapability to perform the necessary duties of an executor. If allowing the executor to continue administering the estate isn’t in the best interest of the estate, courts will remove the executor.

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Procedure for Removal

When attempting to remove an executor, there are certain procedures that courts require. To initiate the removal process, you must file a petition or similar document with the probate court that outlines the reasons for removing the executor, such as his failure to file for ancillary probate in another state. Soon after filing the petition, the court will schedule a hearing where you, and possibly other beneficiaries, can present evidence that supports removal. As the petitioner, it’s your responsibility to provide notice of the petition’s filing to the executor and to other beneficiaries of the will.

Replacing the Executor

A necessary consequence of removing an executor is finding a replacement to finish administering the estate and file for ancillary probate. In some jurisdictions, such as Washington, the state courts will allow the person serving as co-executor to finish administering the estate. However, when a co-executor doesn’t exist, the court will appoint a successor who is named in the decedent’s will. If the will is silent on this matter, the court has the authority to appoint an executor.

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What Are the Qualifications for an Executor for an Estate?

References

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An Executor's Duties to a Beneficiary

Executors are individuals who are appointed through a will to ensure the wishes of the testator, person who created the will, are carried out. In some states, executors are called personal representatives. Since the testator is deceased, the executor owes certain duties to those who stand to benefit from the deceased's will, known as beneficiaries. While the primary duty of the executor is to follow the instructions of the testator and administer the will as written, the executor has other legal duties, called fiduciary duties, he owes the beneficiaries.

What Happens if an Executor Refuses to Probate?

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.

How to Settle an Estate After a Death Without a Lawyer

When it's time, a probate court will handle your estate. State law and court rules govern the process, so they can vary a little by jurisdiction. Having a legal representative might be helpful for an executor, but it's not necessary. If you feel strongly that your executor should have legal guidance, you can include this requirement in your will.

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