Not all estates or wills need to go through probate, so if you’re confused as to why an executor isn’t going through probate, then in the best scenario, they’ve recognized that the estate qualifies for an affidavit that effectively avoids probate.
This is most often a monetary limit, and if the assets that qualify as “probate assets” fall under that value threshold (say $150k), then those estates can sometimes bypass probate.
This is a good thing. It means inheritances get sent faster and you spend less time and money dealing with the courts.
But what if I just don’t want to probate a will?
If you’ve been appointed as the executor but just don’t want to do it and are wondering what would happen if you just played hooky on probate… well some thoughts for you:
#1 You won’t have any authority to manage, sell, or transfer existing probate assets
Not probating a will means forfeiting your rights to the assets as defined in the will. That means no access to private bank accounts, not being able to transfer vehicle titles, not being able to sell a home — anything that isn’t owned by other people or a trust will sit in a sort of legal limbo. There are some rare exceptions by state on this, but you’re essentially handing that stuff over to the state.
And if you don’t submit the will within the estate jurisdiction’s deadline (usually 30-90 days), then the estate and its assets will operate according to a jurisdiction’s “intestacy” laws, which are the laws that govern what happens when someone dies intestate, or without a will. This can mean anyone who isn’t considered a direct heir or next of kin will likely lose their inheritance.
So if there’s stuff that needs to be distributed to beneficiaries (including yourself), you need to figure out if you can avoid probate with an affidavit or go ahead and get moving.
#2 You would disregard someone’s final wishes
There’s no law (that we can think of) that says not probating a will is technically illegal, but that would probably come down to whether or not particular actions were done knowingly or unknowingly — plus from a social ethics standpoint, if a will exists, you should want to honor someone’s wishes! I mean it’s literally the tangible remains of their life, and that’s the entire reason the legal system that supports wills exists.
#3 You could face a civil lawsuit
Not probating a will means beneficiaries may not receive the assets they are entitled to. If no one cares, then sure, maybe you can slide by, but if any beneficiary wants what they're owed, you could open yourself up to a lawsuit over your refusal to initiate and complete probate. This gets into technical territory that is best suited for a lawyer.
But in the end, respecting a will is the right call! Even if you don’t want to do the work — appoint someone else! One of the worst things to do would be to sit on a will and never take action when inheritances are at stake. This is often generational wealth you’re dealing with.
Atticus Advice: You always have the right to decline serving as the executor or personal representative
And remember: if you don’t want to be an executor, you don’t have to. You can just say “nope” via a form and decline the position. Then the appointment would pass to whoever else was named in the will as a back-up, someone will volunteer, or the court will appoint someone. Or if no one wants to do it, you can always pay someone.
The other reasons why an executor may avoid probating a will are more related to incompetence, negligence, or malice.
Let’s look at a few scenarios:
Scenario #1: The executor isn’t doing anything
If an executor isn’t taking any meaningful action after months of reminders and questions but doesn’t want to give up their position, it’s time to lawyer up and ask the court to remove the executor. The longer you wait, the harder it will be to recover certain assets and make sure you get what you’re owed.
Scenario #2: You think the executor is breaching their fiduciary duty
Executors have a fiduciary duty to honor the terms of a will. They can’t act unilaterally in their own interest, and if they do, then that could open them up to civil or criminal cases. So if you suspect an executor is lying about certain assets, selling things and pocketing the money, doing favors or friends, or other breaches of fiduciary duty, you should contact a lawyer.
What to do if you think an executor needs to be removed
If an executor isn’t doing what they’re supposed to be doing & doesn’t want to give up their position, you can:
- Hire a lawyer. Things are about to get complicated.
- Petition the court to tell the executor they better start doing their duty.
- Petition the court to remove the executor. Then the judge will determine if a new one should be appointed.
- Start a lawsuit over the damages created by the executor’s negligence or malice.
- Detail misconduct and attempt to press charges against them.
Probate Articles That You Will Thank Us For Later
All of these link out to other articles and stuff we’ve written in this space, and if you have any questions about probate and estate settlement, definitely shoot us an email at firstname.lastname@example.org. Happy to help if we can.