The executor of a will is often selected because your deceased loved one trusted them to settle their estate and carry out their wishes. But what if the executor does not probate the will? What happens to your loved one’s assets? Is there a time limit to probate a will?
These are great questions. The answers—and more—will be discussed in the sections below.
What Does It Mean to Be the Executor of a Will?
Every estate that goes through probate must have a personal representative. The personal representative is typically an executor when a will is involved and an administrator when no will is involved. The executor’s responsibilities include notifying interested parties about probate, coordinating the distribution, and setting the deceased’s estate. A will typically designates an executor, who brings the will to probate court.
However, the court appoints the individual as executor only after confirming they are fit to fulfill the executor’s duties. The court may also require the executor to pay a bond.
Qualifying to Be an Executor
Texas law sets priority for executor appointment, beginning with the person designated in the will. If the designated executor cannot serve, the law next prefers the surviving spouse, followed by other interested parties, meaning those individuals who will benefit from estate distribution.
Before the court appoints the executor, it must conclude the individual is qualified. Individuals cannot serve as executors if they are:
- Incapacitated,
- A felon,
- A nonresident without an agent in the state,
- A corporation that cannot act as a fiduciary, or
- Someone the court finds “unsuitable.”
Those interested in the estate may contest the executor’s appointment before the court decides.
Bonds
The court requires the personal representative to pay a bond before officially appointing them. The court may not order a bond if the will exempts the executor from paying and the court determines the individual is qualified to serve.
Even then, the court may still require the representative to pay a bond if an interested party challenges the lack of a bond. The bond should be enough to protect the estate and ensure the executor efficiently and effectively manages it.
What Is Probate?
Probate is a court procedure where the executor petitions the court to validate the deceased’s will and transfers the estate to the rightful new owners—the deceased’s heirs and beneficiaries. The probate of a will requires a significant amount of paperwork and filings.
What Happens If the Executor of a Will Does Not Probate It?
Texas law requires the executor to probate the will within four years after the date their loved one passed away. Failure to probate the will in this time frame may invalidate the will. If your loved one’s will is invalidated, their estate is distributed using state laws applied to people who died without a will. Heirs could lose out if the executor fails to probate the will in the four-year window.
So what can you do if the executor of your loved one’s will is not doing their job? You have a couple of options: request that the court compel the executor to act or replace the executor.
Compelling the Executor to Do Their Job
Every personal representative owes fiduciary duties to the estate they administer and those set to benefit from it. In effect, owing fiduciary duties means the personal representative must act in the estate’s best interests. Acting in the estate’s best interests means administering the estate according to the will.
If the executor fails to perform their duties, interested parties can request the court order a bond, whether one was already required or not. The court may also hold an executor in contempt of court to compel cooperation.
Replacing the Executor
An executor may choose to resign and request the court approve the resignation. If the executor does not resign, an interested party can ask the court to remove the executor with or without notice. The court can also choose to remove the executor on its own.
A court may remove an executor without notice if the executor:
- Does not qualify in time;
- Does not provide an estate inventory in 90 days;
- Does not pay a required bond on time;
- Leaves the state for three or more months without permission;
- Moves out of state;
- Cannot be served; or
- Has mismanaged, embezzled, or removed funds from the state, or is about to do so.
The court may remove an executor with notice when there are sufficient grounds to believe the executor has mismanaged, embezzled, or removed estate funds from the state or is about to do so or the executor:
- Does not return accounts the law requires they return,
- Fails to obey a court order,
- Is proved guilty of gross misconduct or mismanaging their duties,
- Becomes incapacitated,
- Is sentenced to prison,
- Becomes otherwise incapable of performing the duties of an executor,
- Fails to settle the estate within three years of appointment, or
- Fails to file an affidavit explaining how they notified interested parties within 90 days.
Another individual must be appointed personal representative after the executor is removed.
What Is The Probate Process?
Multiple steps in probate must be completed to validate your loved one’s will. Probate is essential because the terms of the will aren’t effective until the process is complete. The basic probate process is discussed below.
File the Probate Application
To start probate proceedings, the executor files a probate application with the appropriate county court where the deceased resided. Usually, the application is filed with the probate court. But less populated counties may probate estates through the same courts used for criminal and other civil cases.
Notice of Probate
After the executor applies, the county clerk will post the notice of probate, also called a citation, at the courthouse for at least 10 days. The executor is responsible for serving notice of the probate proceedings to each heir, beneficiary, and creditor of the estate. The notices of probate provide information on the probate case and instructions on how heirs can contest the will and how creditors can make a claim against the estate.
Probate Hearing
Probate hearing information is contained in the notices. The executor will go before a judge to confirm their eligibility and provide evidence that the will belongs to the deceased. After the requirements are met, the court issues letters testamentary that grant the executor authority to act on behalf of the estate.
Inventory and Valuation of the Estate
Before assets can be distributed, the executor must coordinate and oversee an estate inventory. The inventory will be professionally appraised to determine the entire estate value available to settle creditor claims and distribute to heirs and beneficiaries.
Dispute Resolution
Probate disputes can range from an heir contesting the will’s validity to the estate contesting a creditor’s claim. The estate’s assets can’t be distributed to anyone until all disputes are resolved.
Estate Distribution
After resolving any disputes, the executor will distribute the estate to pay creditors, taxes, and attorney fees before the rest is distributed to the heirs.
Contact Us to Learn More About Probating a Will
Our attorneys are passionate about using their first-class legal backgrounds to guide families through the probate maze. We care about every client and understand you need support during this process. You can expect transparency and quality communication from Robbins Estate Law throughout your representation.
Contact us today to get more answers about probate.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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