What happens if an executor refuses to probate?

Written by george lawrence j.d. | 13/05/2017
What happens if an executor refuses to probate?
If an executor refuses to act, they may face legal consequences. (Jupiterimages/Stockbyte/Getty Images)

When someone dies, a personal representative or executor takes over much of the administrative duties involved in winding up the deceased's affairs. If the decedent left a will, they may have appointed someone to act as a personal representative. If there is no will or if no personal representative was named in the will, the court may appoint someone to act. If the executor refuses to act, they may face legal consequences.

Duties to the Estate

A personal representative is a fiduciary to the estate. This means that the executor must act with the utmost good faith and loyalty toward handling the decedent's affairs. The executor cannot commit any act that would constitute a conflict of interest, and the executor must comply with the terms of the will and the orders of the probate court. Probate involves several events, such as notifying creditors or providing the court with a detailed inventory of the decedent's assets. If the executor fails to comply with their duties, they may be in breach of those duties and subject to legal liability.

Breach of Duties

If an executor refuses to comply with the probate court or the terms of the will, they are in breach of their duties. As such, they may be held personally liable for any damages caused by their inaction. According to the website Law-Price, if the conduct constitutes willful misconduct, the court may require the executor to pay punitive damages in addition to any other damages imposed.

Refusal to Act

The court can also revoke the executor's authority to act on behalf of the estate. For example, an executor must file an inventory and appraisal of the decedent's assets with the probate court by a certain date. In California, if the executor fails to comply with this duty, the court can remove the personal representative from office and impose liability on the executor for any damages, such as attorney's fees.

Other Issues

Personal representatives must be willing to undertake the duties associated with the administration of the estate. Responsibility, honesty and integrity are key characteristics of any executor. If a person is unwilling or unable to act in this capacity, the interested parties (such as the heirs) should petition the court to have a personal representative appointed.

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