Key Takeaways: A named executor failing to probate a will when probate is necessary can harm an estate and its beneficiaries and may forfeit their right to serve.
- There are consequences to not probating a will. For example, assets may remain inaccessible, debts may go unpaid, and the estate may continue to incur expenses.
- An executor’s obligations begin upon appointment. A named executor is only a nominee until appointed by the court. As a result, they generally have no duty to initiate probate and cannot be held liable for failing to do so.
- An interested party can file for probate. If the named executor refuses to act, an interested party may instead file a petition for probate and seek appointment as the estate’s personal representative.
Is an Executor Required to Probate a Will in California?
In California, named executors are typically not required to probate a will. The reason is simple: Because they are merely nominees and not yet court-appointed personal representatives, they generally have no legal obligation to act. In other words, they have neither asked the court to be formally appointed to the role nor accepted the appointment.
The way it works is that the creator of a will (called the testator) nominates someone they trust to serve as executor. Once the testator dies, the person named as executor must seek appointment by the probate court if they wish to serve. If the court determines that they are suitable, they will be appointed as the estate’s personal representative. From that point forward, they may be held personally liable for actions they take in their capacity as executor, but before appointment, they generally cannot be held liable for failing to probate the will.
Furthermore, not every estate is required to pass through probate. Depending on the estate’s value, assets, and circumstances, property can sometimes be transferred through simplified procedures, such as an affidavit or a petition, particularly when an estate is small, straightforward, and has minimal real property holdings.
What if the Named Executor Is the Custodian of the Will?
If the named executor is also the custodian of the will, meaning the testator gave them the original document for safekeeping, they are obligated to lodge it with the court within 30 days of learning of the testator’s death. If they fail to do so, there may be consequences.
Consequences of a delayed will filing by an executor-custodian may include:
- Loss of the right to serve. If the will custodian is also the named executor and there is an unexcused delay, the court may refuse them appointment or regard them as having forfeited their right to serve.
- Intervention by interested parties. If a will has not been lodged, or interested parties have waited an extended amount of time for probate to be initiated, they may be able to compel production of the will, initiate probate themselves, or potentially seek appointment as personal representative.
It’s important to note, however, that lodging a will is not the same as probating a will. In other words, while all wills must be lodged with the court, not all wills need to be probated. Similarly, although a will custodian is required to lodge the will, they are not necessarily required to initiate probate.
Although it is best practice to lodge a will with the court as soon as possible after a decedent’s passing, the court will generally still accept a will submitted late without imposing penalties, provided the delay did not cause substantial harm to the estate or its beneficiaries. However, if the delay did cause harm, the will custodian could face legal and financial consequences.
What Happens if the Executor Fails to Act?
The estate and its beneficiaries often end up paying the price when a named executor fails to act.
If the executor nominee does not timely lodge the will or initiate probate, not only may beneficiaries’ inheritances remain inaccessible, but beneficiaries may also remain in the dark about the nature and extent of their inheritances, severely limiting their ability to protect their interests in the estate.
While a named executor is unlikely to face financial or legal consequences for failing to act before being formally appointed, unless they are also the custodian of the will, they should at least notify the beneficiaries if they do not intend to initiate probate or serve as personal representative.
This allows an alternate executor to step in or another interested party to initiate probate instead. The longer an estate remains unopened, the greater the risk that delays will cause lasting harm to the estate and its beneficiaries.
5 Potential Consequences of an Executor Not Probating a Will | |
Consequence | How It Can Affect the Estate |
Estate assets remain frozen | Beneficiaries’ inheritances may remain inaccessible until estate assets are distributed through probate or transferred using an applicable simplified procedure. Similarly, estate property may not be able to be sold, transferred, or refinanced. |
Debts remain unpaid | Probate provides a structured framework for an estate to pay outstanding debts, taxes, and other liabilities. Without it, debts may remain unpaid, potentially resulting in additional interest, penalties, and other legal complications, such as a creditor, whose primary concern is recovering what they are owed, initiating probate themselves. |
Assets depreciate | Real estate, investments, vehicles, and other property may lose value while the estate remains unadministered, particularly when no one has the authority or legal obligation to manage and preserve those assets. |
Estate continues accruing expenses | Depending on the type of property an estate holds, it may continue to incur insurance and maintenance costs, property taxes, subscription and membership fees, and other expenses while probate is delayed. These ongoing expenses can reduce the assets ultimately available for distribution to beneficiaries. |
Named executor loses fiduciary standing | If an executor fails to petition the court for administration of the estate within 30 days after learning of the decedent’s death and learning that they are named as executor, they may be deemed to have waived their right to appointment as the estate’s personal representative. |
Executors may put off initiating probate because they feel overwhelmed by the process. This is understandable, as probate can be time-consuming and complicated. Unfortunately, however, the longer they wait, the more complicated the process may become.
Whether you are an executor who needs assistance initiating or navigating the probate process, or you are a beneficiary or heir concerned about why probate has not begun, a California probate attorney can provide guidance and advise you on the best next steps.
What to Do if the Executor Refuses to Probate the Will
A named executor’s failure or refusal to probate a will does not mean beneficiaries are helpless. In fact, the last thing beneficiaries should do in this situation is remain passive, as their inheritances may be at stake.
Below are some steps beneficiaries should take when an executor is not probating the will.
Determine whether the will has been lodged.
If the decedent had a will and someone lodged it with the court, the document becomes a matter of public record and can generally be located through the probate court. It may also clarify who is nominated as executor.
If the will has not been lodged, consider speaking with the decedent’s family members, friends, estate planning attorney, or anyone else who may be able to confirm the will’s existence or help locate it.
Communicate with the named executor.
The named executor may be unaware that they were nominated to serve or may not understand that they are generally responsible for initiating probate if they wish to seek appointment.
Whatever the reason for the delay, it is worth communicating with them to understand why probate has not been initiated, whether there is a reasonable explanation for the delay, and whether they ultimately intend to take on the role.
If they do not intend to serve, this gives other interested parties an opportunity to begin the process of initiating probate or seeking appointment.
Ask an interested party to initiate probate instead.
If the named executor has failed to act, other interested parties, such as beneficiaries, heirs, or the decedent’s creditors, may be able to initiate probate themselves. Doing so can help protect their rights and interests while preventing further delays in administering the estate.
Consult a probate attorney.
Probate complications arising from an executor’s failure to act are not always easy to navigate or resolve. An experienced probate attorney can help identify the appropriate course of action, get the administration process back on track, and help protect beneficiaries’ interests throughout the process.
Executor Not Probating a Will FAQs
How long does an executor have to probate a will?
A named executor generally must initiate probate within 30 days of learning of the decedent’s death and their nomination as executor if they ultimately wish to seek appointment to the role.
Although the court does not always enforce this requirement, the law provides that a person who fails to meet it may be held to have waived their right to appointment as the estate’s personal representative.
That said, it is important to remember that a named executor is not required to probate a will simply because they have been nominated. They have not yet been appointed by the court and, therefore, generally have no fiduciary obligations to the estate. However, if they wish to serve, delaying or refusing to initiate probate could jeopardize their ability to secure appointment.
Is executing a will without probate possible in California?
In some cases, yes. If a will governs an estate whose value does not exceed California’s small estate threshold of $208,850 and/or contains only modest real estate holdings, the estate may sometimes be administered through a simplified procedure, such as a Small Estate Affidavit or Petition to Determine Succession to Primary Residence, instead of a full probate proceeding.
A formal probate may also be bypassed by surviving spouses and registered domestic partners, who may utilize a Spousal Property Petition to confirm and transfer ownership of community property and separate property.
That said, some estates cannot be administered without a full probate proceeding. For example, estates involving disputes may require formal probate. Likewise, high-value or complex estates will typically need to go through the probate process.
Who initiates probate when there is no will?
When someone dies without a will in California, probate is typically initiated by an interested party, such as a family member or legal heir of the decedent. Rather than lodging a will, the interested party proceeds directly to filing a Petition for Probate to initiate the process.
It’s important to note, however, that even without a will, probate may not be necessary if the estate in question qualifies for a simplified procedure.
If probate is required, the petitioner must notify the interested parties that a probate case has been opened at least 15 days in advance of the initial probate hearing.
Can an executor act before probate in California?
No, a named executor generally cannot act on behalf of an estate before probate in California. To act on behalf of the estate, the named executor must first be formally appointed by the court, which occurs through the probate process. Until then, they have no legal authority to represent the estate or act on its behalf in transactions. Remember, a named executor is merely a nominee.
An executor’s authority is evidenced by a document known as Letters Testamentary or Letters of Administration. Without this document, financial institutions and other entities generally will not recognize the executor’s authority or release the decedent’s assets to the estate.
Can an estate be distributed without probate?
In some instances, yes. An estate that qualifies for a simplified procedure can potentially be distributed without a full probate, provided there are no disputes over the will or estate property.
This, however, should not be misinterpreted to mean that a decedent’s estate can be distributed immediately after their death or without any court involvement or filings, as this is inaccurate. Even estates that qualify for simplified procedures generally require some form of court filing before the assets can be distributed.
Does an executor have to give beneficiaries a copy of the will?
Generally, yes. Beneficiaries are usually entitled to receive a copy of the will upon request.
That said, because lodged wills are public documents, they can generally be accessed not only by beneficiaries but by anyone, even if the executor refuses to provide a copy. To access a will, you can contact or visit the superior court in the county where the document was lodged.
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