What If The Executor Does Not Probate The Will? Risks, Remedies, And Legal Consequences

If an executor refuses or fails to probate a will, heirs can petition the court to remove them and appoint a new administrator. Delays risk asset mismanagement, creditor lawsuits, and the estate being distributed under state intestacy laws (as if there were no will). Here’s what you need to know.

Key Consequences of an Executor Not Probating a Will

1. Assets Remain Frozen

Without probate, the executor cannot legally transfer property titles, access bank accounts, or sell assets like a house. Heirs are stuck in limbo.

2. Creditors Can Sue the Estate or Executor

Creditors have a limited time (often 6–12 months) to file claims. If probate isn’t opened, creditors may sue the executor personally or place liens on estate assets.

3. Heirs Can’t Inherit Property

The will’s instructions are unenforceable until probate validates it. Assets may eventually pass under state intestacy laws (e.g., to a spouse or children, regardless of the will’s terms).

4. Executor Liability for Misconduct

Executors have a fiduciary duty to act in the estate’s best interest. Failure to probate could lead to lawsuits for negligence or breach of duty.

5. The Court May Remove the Executor

Heirs can petition the probate court to remove the executor and appoint a new administrator.

Why Would an Executor Avoid Probating a Will?

Common reasons include:

Ignorance of legal duties (e.g., not knowing probate is required).
Fear of personal liability for estate debts.
Family conflicts or disagreements with the will’s terms.
Cost concerns (probate fees, attorney costs).

How Heirs Can Force Probate: 4 Steps to Take

1. Send a Formal Demand Letter

Request in writing that the executor file the will and open probate. Cite state laws (e.g., Ohio requires filing a will within 30 days of death).

2. Petition the Court to Remove the Executor

File a Petition for Removal with the probate court. Grounds include:

Failure to perform duties.
Fraud or mismanagement.
Conflict of interest.

3. Request Appointment as Administrator

If the court removes the executor, you or another qualified person can apply to take over.

4. Force Probate via “Lost Will” Proceedings

If the executor hides or destroys the will, heirs can use witness testimony or copies to prove its validity.

What If the Executor Can’t Be Located or Refuses to Act?

The court can declare the executor “unwilling or unable” to serve and appoint an administrator.
In some states, heirs can use a small estate affidavit to claim assets without probate (if the estate qualifies)

State-Specific Rules to Know

California: Heirs can file a Petition for Probate themselves if the executor stalls (Probate Code § 8000).
Texas: The court may issue a Citation to Probate the Will to compel the executor to act (Texas Estates Code § 256.051).
Florida: Heirs can request a Summary Administration for estates under $75,000 to bypass traditional probate.

FAQs: Executor Refuses to Probate

Can the Executor Be Sued?

Yes. Heirs or creditors can sue for breach of fiduciary duty or financial losses caused by delays.

Does the Will Expire If Not Probated?

No, but courts may question long delays. In extreme cases, the estate is treated as intestate (no will).

Can You Sell Property Without Probate?

Only if the asset avoids probate (e.g., joint ownership, living trust, TOD deed). Otherwise, probate is required.

How to Protect Yourself as an Heir

Consult a Probate Attorney: They can send legal warnings to the executor or file court petitions.
Secure Critical Documents: Obtain copies of the will, death certificate, and asset records.
Freeze Joint Accounts: Prevent the executor from misusing funds.