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

By Heather Frances J.D.

A probate estate is administered by a “personal representative,” which is a term that includes both executors and administrators. The personal representative is typically called an executor when the decedent left a will; the personal representative is called an administrator when the decedent’s estate is probated without a will. Both types of personal representatives have similar duties and responsibilities. These include collecting the decedent’s assets, paying creditors, and distributing the remaining assets to the decedent’s heirs or beneficiaries. If an executor refuses to open an estate, you may be able to step in to ensure the estate is probated.

Opening an Estate

Opening an estate requires that someone, usually the executor named in the will, submit the will to the appropriate probate court along with an application to open the probate proceedings. Until the will is accepted by the court and the named executor is officially appointed as executor by the court, the executor has no authority over the estate. If the named executor refuses to apply for the probate estate, your remedies depend on whether the executor has the original will in his possession.

When the Executor Does Not Have the Original Will

Though state laws vary, if the named executor does not have the original will – or is willing to let you have it – any interested person typically can submit the will to the court, along with an application to open the probate estate. If you don’t know where the original will is, you can check with the county where the decedent lived at the time of his death to see if he recorded his will rather than leaving it with someone. With the original will and an application, the probate court can open the probate estate. The court can even name a different executor if the named executor doesn’t wish to act as executor.

Get a free, confidential bankruptcy evaluation. Learn More

Probate Without the Original Will

If the executor does have the original will and won’t release it but refuses to act, probate may be opened without the original will. If you have a copy of the will and a witness to say that the copy matches the original, your state may allow you to file that copy with the probate court to initiate the probate case. If you don’t have a copy, perhaps because you aren't sure if the decedent even had a will, you could open an intestate estate, which is the type of estate opened for decedents who die without a valid will. However, opening an intestate estate will likely mean the court will use your state’s intestate succession laws to determine who inherits from the decedent rather than using the distribution arrangements in the decedent’s will.

Court Orders

If your state does not allow probate to be opened with a copy of the will, it may still allow you, as an interested person, to file a motion with the probate court asking the court to order the named executor to turn over the original will for probate. There may be punishments available under your state’s laws for people who intentionally hide or withhold the will, including jail time and a delay of inheritance.

Get a free, confidential bankruptcy evaluation. Learn More
What Do I Do With His Will if My Dad Passed Away?
 

References

Related articles

Advice on Contesting Wills

A will contest or a will challenge is a court case brought to dispute the validity of a will, according to FindLaw. In most cases, a will contest is filed with the probate court, and the executor of the estate is responsible for defending the will's validity. It may be wise to hire an attorney for a will contest. He will know your state's laws regarding will challenges, and may increase your chances of success.

How to Get My Poem Copyright Protected

Most written works in the United States, including poetry, are automatically copyrighted as soon as they are created. But registering your poem with the U.S. Copyright Office may be important to protecting your copyright. You have to register before you can sue someone for copyright violation, and registering will help you prove your case. In addition, you can generally recover attorney fees and statutory damages only if you registered your copyright before the violation occurred. "Statutory damages" let you recover money from someone who violates your copyright, without making you prove that the violation harmed you economically. If you think there's a chance that someone will copy your poem without permission, copyright registration is probably a good idea. You can register your poem electronically or by mail. The U.S. Copyright Office recommends electronic registration because it is cheaper and faster.

Does the Executor of a Will Have to Use an Attorney to Execute the Will?

When you create a will, you not only leave instructions for how your property should be distributed upon death, you also nominate someone to administer your estate. This person is known as the executor. The executor is charged with gathering estate property, paying estate debts and making distributions to beneficiaries of the will.

Related articles

How to Get a Copy of a Probated Will

A copy of a probated will is useful for a variety of reasons, including family tree research, property title research, ...

Can I Sue My Stepmother for a Copy of My Father's Will?

If your father is alive, you cannot sue your stepmother for a copy of his will. If your father has died and your ...

Alabama's Statute of Limitations for Contesting a Will

Most states, including Alabama, have rules about who may contest a will and for how long after death someone is ...

Is a Copy of a Will Legal?

A copy of a will is sometimes legal, but generally only after court proceedings establish it to be a true reproduction ...

Browse by category
Ready to Begin? GET STARTED