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.
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.
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.