What Happens If the Executor Does Not Probate the Will?

If an executor refuses or fails to probate a will, the estate sits in limbo—assets can't be distributed, property can't be transferred, and beneficiaries wait indefinitely. Fortunately, interested parties (including beneficiaries) can petition the court to either force the executor to act or replace them entirely.

When someone is named executor of a will, they have a legal obligation to begin the probate process. But what happens when they don't? Maybe they're grieving and overwhelmed. Maybe they live far away. Maybe there's family conflict. Whatever the reason, an executor who doesn't do their job creates problems for everyone waiting for their inheritance.

Here's what you need to know.

Is Probate Legally Required?

In most cases, yes—but it depends on what assets exist.

Probate IS Required When:

• The deceased owned real estate solely in their name
• Bank accounts have no beneficiary designation and exceed the small estate threshold
• There are assets that can only be transferred through court authorization
• Creditors need to be formally notified and claims resolved

Probate May NOT Be Required When:

• All assets pass through beneficiary designations (life insurance, retirement accounts)
• Assets are held in a living trust
• Property is owned jointly with right of survivorship
• The estate qualifies for a small estate affidavit (thresholds vary by state)

The reality: Most estates need at least some probate process, even if simplified. Without it, beneficiaries can't legally take ownership of many assets.

What Happens If the Executor Won't Act?

When an executor fails to begin probate, several problems arise:

Assets Are Frozen

• Bank accounts remain inaccessible
• Real estate can't be sold or transferred
• Investment accounts can't be touched
• Creditors can't be paid (and may charge interest/penalties)
• Tax returns can't be filed properly

No Legal Authority Exists

The executor needs "Letters Testamentary" from the court to act on behalf of the estate. Without filing for probate, they have no legal authority to:

• Access bank accounts
• Sell property
• Pay debts
• Distribute assets
• Deal with creditors

Time Keeps Passing

While nothing happens, costs may pile up:

• Property taxes on real estate
• Mortgage payments
• Utility bills
• Storage fees
• Maintenance costs

Someone may be paying these out of pocket, hoping to be reimbursed from the estate—but that can't happen until probate opens.

Why Executors Don't File for Probate

Understanding the reason can help you figure out the solution.

Overwhelm or Grief

Being named executor is a big responsibility. Some people don't realize what's involved until after the death. Combined with their own grief, the task feels impossible.

Solution: Offer to help with paperwork or suggest hiring a probate attorney to guide the process.

Fear of Family Conflict

The executor may anticipate disputes over the estate and avoid probate to avoid being caught in the middle.

Solution: Remind them that their job is to follow the will's instructions. The court can help resolve disputes.

They Live Far Away

An out-of-state executor may find it difficult to manage an estate remotely, especially if they need to appear in court.

Solution: Many tasks can be handled remotely or through a local attorney. Alternatively, they can decline to serve.

They Want to Be the Sole Beneficiary

In some cases, an executor who is also a beneficiary might delay probate hoping other beneficiaries will give up or die.

Solution: This is where legal action becomes necessary.

They Simply Don't Want the Job

Some executors don't want the responsibility and ignore it, hoping it will somehow resolve itself.

Solution: They can formally decline (renounce) the role, allowing an alternate executor to step in.

Time Limits for Filing Probate

Most states have deadlines for when probate should be filed:

Important: Even in states without strict deadlines, unreasonable delays give interested parties grounds to petition the court.

What Beneficiaries Can Do

You have more options than you might think.

Step 1: Communicate with the Executor

Before taking legal action, try direct communication:

• Ask what's causing the delay
• Offer to help with tasks
• Suggest hiring a probate attorney
• Set a reasonable deadline for action

Get this in writing (email is fine). It documents your attempts to resolve the situation.

Step 2: Petition the Court

If the executor won't act after requests, beneficiaries can file a petition asking the court to:

Option A: Order the executor to act

The court issues an order requiring the executor to begin probate within a specified timeframe.

Option B: Remove the executor

The court removes the named executor and appoints:

• The alternate executor named in the will, or
• An administrator chosen by the court (often a beneficiary or professional fiduciary)

Step 3: File for Probate Yourself

In many states, any "interested party" can petition to open probate—you don't have to be the named executor. Interested parties typically include:

• Beneficiaries named in the will
• Heirs who would inherit under state law
• Creditors of the estate

By filing, you can get the process started and ask the court to appoint an administrator if the executor doesn't step up.

Consequences for an Executor Who Doesn't Act

Executors who fail to perform their duties face potential consequences:

Removal by the Court

The most common outcome. The court appoints someone else to handle the estate.

Personal Liability

If the executor's delay causes financial harm to the estate or beneficiaries (like missed tax deadlines, penalties, property damage from neglect), they may be personally liable for those losses.

Loss of Executor Fees

Executors are typically entitled to compensation for their work. An executor who didn't do the work doesn't get paid.

Legal Costs

They may be ordered to pay the legal fees incurred by beneficiaries who had to petition the court to remove them.

Can You Skip Probate If There's a Will?

A will doesn't avoid probate—it actually requires it. The will must be filed with the court and "admitted to probate" before it has any legal effect.

Common misconception: People think having a will means everything automatically transfers to beneficiaries. It doesn't. The probate process is how the court:

1. Confirms the will is valid
2. Authorizes the executor to act
3. Ensures proper notification to creditors
4. Oversees distribution to beneficiaries

Without probate, the will is just a piece of paper.

What If No Probate Is Filed at All?

If no one ever files for probate, different outcomes are possible:

Assets Remain Frozen Indefinitely

Bank accounts stay in the deceased's name. Real estate can't be sold or transferred. This situation can persist for years.

Heirs May Eventually File

There's usually no time limit for an heir to petition for administration (though there may be deadlines for probating the will specifically). Someone may file years later.

Property Escheats to the State

In extreme cases where no one claims assets, the property eventually becomes the state's property ("escheatment"). This typically takes many years.

Future Complications

When someone eventually does try to resolve the estate (maybe when selling inherited property), they'll need to do retroactive probate—more complicated and expensive than doing it correctly the first time.

What If the Executor Dies?

If the named executor dies before completing probate (or before starting it), the court will appoint a replacement:

• First choice: Alternate executor named in the will
• Second choice: Administrator nominated by beneficiaries
• Third choice: Administrator appointed by the court

The estate doesn't just disappear—someone will be appointed to handle it.

Frequently Asked Questions

How long does an executor have to file for probate?

It varies by state. Some states require filing within days (Florida requires depositing the will within 10 days). Others have no strict deadline but allow beneficiaries to petition if there's unreasonable delay. Texas has a 4-year limit for probating a will.

Can I force the executor to do their job?

Yes. You can petition the probate court to order the executor to begin administration. If they still don't comply, the court can remove them and appoint someone else.

What if the executor is also a beneficiary and is delaying on purpose?

This is unfortunately common. Document the delays, request action in writing, and then petition the court for removal. The court takes a dim view of executors who breach their fiduciary duty for personal gain.

Can anyone file for probate, or only the executor?

Any "interested party" can file a petition asking the court to begin probate. This includes beneficiaries, heirs, and even creditors. You can ask the court to appoint you or another suitable person as administrator.

What if there's no will and no one wants to handle the estate?

If someone dies intestate (without a will) and no family member steps up, the court can appoint a public administrator or professional fiduciary to manage the estate.

Does the executor get in legal trouble for not filing?

Not criminal trouble in most cases. But they can be removed, held financially liable for any harm caused by the delay, lose any executor fees, and be required to pay other parties' legal costs.

Getting Your Inheritance When Probate Is Delayed

Waiting for an executor who won't act is frustrating. While you work through the legal process, your finances are stuck.

If you're a beneficiary with a legitimate inheritance coming and can't wait for the executor to get their act together, an inheritance advance may help. You can access a portion of your expected inheritance now, even while probate is pending or delayed.

The advance is repaid from the estate once it finally closes—you don't make monthly payments, and there's no credit check.