Understanding the Executor’s Role in the Probate Process
The person named as an executor is typically expected to file the initial petition to open probate.
If there is no named executor, or the executor has declined to serve, a relative or other named beneficiary may begin proceedings. However, if you are in possession of the decedent’s original will, you may be required to file a petition to open probate—even if you aren’t the executor and have no other administrative obligations.
The Consequences of Failing to Follow Through on a Probate Claim
If you are the estate executor or possess an original copy of the deceased person’s will but fail to file for probate, you could be subject to heavy penalties—penalties that could risk your own finances or even expose you to the possibility of criminal prosecution. The consequences of failing to follow through on a probate claim could include the following:
The Estate Could Be Frozen
Probate is the only way to transfer assets from a deceased person to their living heirs and beneficiaries. If a probate claim is not opened, assets cannot legally be transferred—meaning the entirety of the estate could be placed into legal limbo until proceedings are either opened or resumed.
The Estate May Have to Pay Late Fees
Probate is a very time-sensitive process—one which is subject to a multitude of different deadlines. Most probate claims, for instance, must be filed within a year of the decedent’s death.
Waiting any longer means the estate could be subject to late fees—late fees that can add up quickly and take money away from the deceased person’s heirs.
The Estate Could Lose Assets to Creditors
If the deceased person died with debt, certain creditor claims must be paid before inheritances can be distributed to heirs and other beneficiaries. However, a decedent’s debts cannot be paid without an active probate case. If the estate remains subject to debt, interest can accrue, and heirs may find themselves liable for expenses they never expected to pay.
You Could Lose Your Position as Executor
An executor can be appointed by either a will or the court. However, the executor of choice can be contested. This is because executors have what is termed a “fiduciary duty,” meaning they have a legal obligation to act in the best interest of the estate.
If an executor fails to carry out their duties—initiating probate, inventorying assets, and paying creditors—they can be removed from their position by court order. And, unless the decedent appointed a secondary estate representative, the process of finding a replacement could be time-consuming and financially devastating.
You Could Be Prosecuted or Held Liable for the Estate’s Losses
California understands that many estate executors aren’t legal professionals. Although criminal prosecution for probate-related mistakes is rare, the Golden State can take legal action against executors and estate custodians who it believes intentionally delayed probate—whether to avoid proceedings outright or abused estate assets for their own financial benefit.
Outside of prosecution, executors can also be held liable for certain estate-related losses, including those related to depreciation and mismanaged assets.
The Law Firm of Kavesh, Minor & Otis, Inc. Can Help You Make Sense of Probate
Being appointed as an estate executor can be an honor, but it’s a position that carries no small measure of risk. Any mistake or oversight—no matter how minor—could have grave consequences, both for the estate and for the executor. However, you do not have to navigate the process of probate by yourself. The Law Firm of Kavesh, Minor & Otis, Inc. has spent decades helping California families secure long-lasting legacies. Our experienced team of estate planning attorneys could take the uncertainty out of probate by:
- Providing executors with informed advice and assistance
- Ensuring that document submission deadlines and other critical milestones are met on time and without delay
- Collecting, inventorying, and appraising estate assets
- Assessing creditor claims and protecting heirs from predatory lenders and expired debts
- Distributing inheritances
