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What if the Executor Does Not Probate the Will – Can We Make Him? Can they Resign?

What if the Executor Does Not Probate the Will

What if the executor does not probate the will? Acting as an executor of a New York estate is time-consuming and may be overwhelming for some people depending on the size of the estate and the extent of duties required. Some people chose simply not to probate the will.

It is not unusual for an executor to decide not to probate the will. The reasons can be varied, including the following:

  • the estate does not have enough assets to make the time and expense of probating the will worthwhile
  • the bulk of the estate was passed outside of the will
  • the will is disadvantageous to the executor
  • the will cuts out the executor
  • time constraints
  • lack of experience
  • health matters
  • a conflict with co-executor or beneficiaries
  • the executor resides in another estate or out of the country
  • prior commitments
  • personal reasons

Most people have their spouse, family member or friend as the executor of an estate. Their loved ones may not be experienced or able to handle the job of being an executor. For instance, large estates may require the management of property, the testator’s business or the sale of personal and real property. Not everyone can do those things.

Proceeding to Compel the Executor to File the Will

If the executor does not want to probate the will because it’s disadvantageous to them, sometimes the executor tries to hide the will or delay its probate. If that happens, the beneficiaries of the will can compel the executor to file the will with the court. The beneficiaries can then petition to have someone else serve as a personal representative of an estate.

If an executor does not probate the will and does not wish to serve as the executor of the will, you can check if the will appoints a successor executor to serve in his place. If there is no successor executor, the court can appoint someone else to act as the administrator c.t.a. of the estate. C.t.a. is latin for cum testamento annexo, which means with the will annexed.

Formalities for the Executor Resigning Because They Don’t Want to Probate the Will

Sometimes, a testator has named an alternate in the testator’s will or there are two executors named. Under New York Law, an executor or beneficiary cannot legally appoint a successor. This can only be done by the New York Surrogate’s Court. If an executor has not yet been sworn in by the Court and decides not to serve, the executor can do nothing and let the beneficiaries file the required documents requesting the appointment of a successor or confirmation of a co-executor as the sole executor, and the Court will remove the existing executor automatically and appoint a successor. Or in the alternative, if the beneficiaries cannot decide on an executor, they can ask the Court to designate a professional to be named as the successor executor.

When an executor has been sworn in by the Court, then the executor must follow some formalities and submit a formal written resignation to the Court with a letter explaining why the executor wishes to resign and ask the Court to appoint a successor. The executor must provide an accounting of all estate monies paid out on behalf of the estate including creditor’s claims and any distributions, provide copies of bank statements and payment receipts to the family and other beneficiaries of the estate as well as to the Court.

If the estate is large with many assets such as real estate, it may be a good idea to have an attorney or another financial professional act as the executor if the executor does not probate the will. An executor may receive compensation for their services, which fees are set forth by the New York Statutes.

If a beneficiary suspects that the executor has breached a fiduciary duty, the beneficiary can ask the Court to remove the beneficiary and the executor could be subject to paying restitution to the estate and the beneficiaries if the estate suffered any financial losses.

If the executor dos not probate the will, you can to speak to an estate attorney to weight your options. You can call the Law Offices of Albert Goodwin at (212) 233-1233.