The term “probate process” refers to a series of hearings presided over by a judge. This judge is known as a probate court judge. During the probate process, the validity of a deceased person’s (decedent’s) will is proven.
In addition, the decedent’s assets are distributed to individuals (beneficiaries), as provided for in the will’s terms. An individual designated in the will known as an “executor” initiates the probate process and distributes the assets.
The executor then formally initiates the probate process by filing a “notice of probate” and a “petition for probate” with the court. The notice lists creditors, known relatives, and beneficiaries under the will, and notifies them that the executor has filed the petition. The petition is a formal request by the executor to administer the estate. The judge reviews the petition.
After review, the judge issues “letters testamentary.” “Letters testamentary” refers to a document issued by the court, stating that the appointment of the executor is valid. The letters testamentary document authorizes the executor the power to act on the estate’s behalf. Then, the executor completes the task of paying creditors of the estate, and distributing assets to beneficiaries.
If an executor fails to initiate the probate process, any party with an interest in the decedent’s estate may do so. A party who stands to gain under the will, such as a creditor or beneficiary, is more likely to initiate probate than a party who owes a debt to the estate. A beneficiary or creditor is more likely to initiate probate for an estate with significant assets than for an estate with fewer assets.
The judge may remove the executor at any time during the probate proceeding, if the executor is not carrying out their obligations. Executors are obligated at all times to act in the best interests of the estate and the beneficiaries.
Frequently, an executor has a conflict of interest with one or more beneficiaries. Types of conflicts include:
Examples of common executor-beneficiary conflicts of interest include:
- An executor attempts to buy property from the estate: An executor, to act in the beneficiary’s best interests, should seek to obtain as much money from the sale of estate assets as possible. A conflict of interest arises when the executor is the buyer of that property. The executor, as buyer, will seek to pay the lowest price possible. The conflict between acting in the beneficiary’s best interests, and the executor’s personal interests as buyer, is a conflict of interest;
- An executor has failed to render a proper accounting: An executor must provide beneficiaries with an accounting of all assets and distribution of assets. An executor may not provide an accounting out of laziness or simple negligence. More seriously, an executor may refuse to give the beneficiaries a proper accounting if the executor is stealing from the estate;
- An executor is self-interested: Most states allow for executors to also be beneficiaries. An executor beneficiary has an interest in obtaining estate assets as a beneficiary. An executor beneficiary can use their executor authority to place their beneficiary interests over those of the other beneficiaries. This creates a conflict of interest.
If a party with an interest in the will believes the executor has a conflict of interest, that party can file a petition with the judge that seeks the executor’s removal. In the petition, the party must describe the nature of the conflict of interest, and why the executor should be removed,
The court then reviews the petition. If the court decides there are not sufficient grounds to remove the executor, the executor will remain in their position. If the court finds there are sufficient grounds to remove the executor, the court will order the executor removed from their position. The court will then appoint a new executor who is capable of performing executor duties impartially.
A court can compel the executor to provide an accounting of assets and distribution of assets to the court and the beneficiaries, The court can also require the executor to make distributions of estate property that the executor should have made, but failed to.
If you are named as the executor in the will and need advice as to how to proceed, you should contact a probate lawyer. An experienced probate attorney near you can explain your rights and responsibilities as executor. The attorney can also represent you if there is a claim that you have a conflict of interest.