An executor of the will is in charge of filing all the correct paperwork and ensuring that the will carries out all the tasks listed when the person dies. If they do not carry out the correct tasks and do not inform the beneficiaries of things pertaining to the will, they can be held personally liable in court. All states have different rules for the executors of the last will, but all states require that they ensure the deceased’s final instruction in the will is carried out according to its terms.

What is Probate?

Probate is the legal procedure that an estate goes through after a person passes away. A court will start the process of distributing the estate to the proper heirs. They will also ensure that everyone gets their fair share of assets.

Probate is much easier if you have a last will or living trust that clearly defines your wishes. These documents will help the beneficiaries and executor determine what they should do with your assets and estate after you pass away.

Most of the time, all wills and estate plans will go through probate. However, if you have a plan in place and an executor in charge, probating the last will can be much easier. Executors should also pay all the debts and taxes and then distribute the remaining property.

Why Would an Executor Not Probate a Will?

No matter what the size of the estate is, a will should always be probated. If you know the executor of the will is not probating the will, you need to take action even if the estate is small. Sometimes the executor could get into legal trouble, while sometimes, they may just run into issues where you need legal advice.

One of the main reasons why someone might not probate a will is if they directly benefit from the will not being probated. For example, suppose someone is leaving their estate and assets to a family friend. If the executor of the will is an adult child who could get control of the estate or assets if the will is not probated, they might choose not to complete this legal process.

Consequences of Not Probating a Last Will

There are many consequences of not probating a last will, and some will be directed to the executor.

Possible Lawsuits

Since the heirs may not receive what they are entitled to, they will be able to file a lawsuit against the executor. Filing a lawsuit in court is sometimes tricky and can take a long time, but many heirs will fight for their assets and other estates if they cannot get it from the executor.

Not Being Able to Fight Any Errors

If there are errors in the will, they will also not be fixed because the will did not go to probate court. You will also not be able to challenge the will’s validity or other problems in the will. If you want to contest the will for any reason, it will need to be taken to probate court.

Not Being Able to Contest the Will

Without an executor probating the will, you are stuck with the will as it is without the right to fight it in court. Without the will being contested or being found valid, you have to keep the will as is.

The Title Won’t Be Transferred

If the property’s title needs to be transferred to another person, the will has to go to probate court first. So, if the executor fails to take the will to court, the title can’t be transferred.

If the assets are payable upon death to the beneficiary or if the property is passing through a trust, then the title may be able to be transferred without the will going to probate. However, in most cases, the will needs to be probated so that the heirs can do the proper paperwork for the property.

Debts Will Not Be Paid

It is the executor’s job to pay all the debts and taxes of the deceased person. Even if a significant amount is not owed, all creditors and taxes will need to be paid from the estate. The executor will also need to post notices of the death so that creditors can come forward and collect what they are owed.

If the executor does not do their job after the person dies and does not probate the will, the debts will not be paid off. This can cause legal trouble for the heirs and beneficiaries.

How to Handle the Situation Where the Executor Will Not Probate

Having an executor who will not probate the will can be frustrating and detrimental to your mental health. Having a loved one pass away is extremely difficult, and you don’t need any other issues arising when it comes to the will and the estate.

If your executor is not probating the will, there are some steps you can take. You will need to follow them and ensure that you are doing everything you can to get a new executor.

Step 1. Send a formal notice to the executor

Before taking legal action or filing a lawsuit, you can try to contact the executor directly. Send a formal notice to their office explaining that you are ready for the will to be probated and that they need to take action right away.

Make sure you are firm but still kind. Let them know that they need to probate the will so you and the other beneficiaries can gain your assets and move forward with the estate and property.

Step 2. File a complaint with the probate court

If the executor is not responding, you might want to file a complaint with the probate court. You can usually do so online or at the courthouse itself. Explain that the executor is not probating the will and is ignoring you when you contact them.

The court will give you the paperwork you need to file the complaint. Make sure you file the complaint as soon as possible so that the court knows you are acting quickly.

Step 3. Change the executor

Even if you file a complaint with the probate court and get the executor to start the probate process, you might still want to change the executor. This can ensure you get the process done quickly and gain access to the assets and estate that you were left in the will.

Bottom Line

Not probating a will can have serious consequences for the executor, beneficiaries, and heirs. The executor’s job is to take the will to the probate court, pay debts and taxes, and ensure that the assets are divided correctly to the people listed in the will.

If the executor is not probating the court, you will need to get a new one and file a complaint with the probate court.

Published: Sep 21, 2021