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.

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.

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.

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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.

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