How to Get an Executor to Probate a Will

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Even when a will spells out clearly which heirs get what assets, the property does not automatically transfer upon the death of the person making the will. Wills must pass through a court-supervised administration process, where an executor takes charge of assets, pays bills and files estate taxes. Most wills name executors, but the court appoints an executor when the will is silent or the named executor cannot serve. Although the executor owes a duty of confidence to the heirs, he generally proceeds at his own pace to administer the will. Heirs can, however, nudge an executor into action.

Call or visit the person the will appoints as executor. Ask him questions about commencing probate. Although he is not obliged to open probate immediately, a lengthy delay can prejudice the estate.

Open probate yourself, if you qualify in your state. Many states allow either an executor or anyone with a pecuniary interest in the estate to file the will in probate. You have a pecuniary interest if you stand to inherit money or property under the will. Obtain the appropriate petition form from the probate court, fill it in, and file it with the will and death certificate.

Learn the probate time frame in your state. Some states, like California, require the executor to petition for distribution of assets within six months of the date the court officially issues papers naming him executor. If he does not do so, he must certify the status of the estate to the court at that time.

Attend probate hearings, and ask questions. All heirs receive notice of probate hearings, and, in most jurisdictions, the judge allows them to ask questions and present issues in open court. Your attendance demonstrates to the executor and the court that the heirs are anxious to proceed.

File a motion with the court to replace the executor if you have proof that he is neglecting his duties, causing detriment to the estate or dragging out the matter to extract additional fees. Follow court procedure in serving copies of the motion on the other parties to the probate. The court gives you a hearing date for the motion. Appear on that date, and argue the case.

Tips

  • The more you familiarize yourself with probate procedures in your jurisdiction, the more effectively you can participate in the matter. Many courts have Internet sites with basic information about the process.

Warnings

  • Probate usually takes longer than heirs would like, but length of probate does not always justify a motion challenging the executor. Find out why things are not moving before you hire a lawyer. The executor must wait until the period for filing claims against the estate has passed before moving toward distribution. If he distributes the estate before all claims are in, he pays legitimate claims out of his own pocket.