Who Can Initiate Probate?

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 What Is Probate?

The term probate refers to the legal process in which a deceased person’s estate is addressed and distributed under the supervision of a probate court. An example of this would be how the probate process can be used to:

  • Establish the legal validity of a will document;
  • Correctly distribute assets to any beneficiaries that are named in the will; and
  • Establish a plan for paying off any taxes or debts that are owed by the decedent’s estate.

Generally speaking, the probate process is handled by what is known as the “probate court.” As such, the purpose of a probate court is to oversee matters associated with the decedent’s estate, such as:

Depending on the state in which you live, your local probate court may go by another name, such as a Chancery Court or a Surrogate Court.

What Is An Executor? What Are Their Duties?

A will executor is someone named in a will document or appointed by the court to be responsible for managing the distribution of the decedent’s estate. There is generally one single executor, but one or more people can be charged with the role. An executor may be related to the decedent, or they can be:

  • A friend;
  • A lawyer;
  • An accountant; or
  • Some other similar professional.

The defining requirement for being a will executor is that the person who is chosen as executor be at least 18 years old and cannot have been convicted of a felony. In terms of an executor’s duties, they may be tasked with addressing everything from disposing property as instructed in the will to handling the decedent’s debts and tax payments, as was previously mentioned.

In short, an executor’s duties are mostly administrative. These duties will begin at the time of the estate owner’s death, and will continue until the estate’s assets have been distributed and all taxes and bills have been paid. Some additional examples of the duties of an executor may include, but are not limited to:

  • Paying valid creditors, such as a bank;
  • Paying estate taxes;
  • Notifying Social Security and other agencies and companies of the death;
  • Canceling credit cards, magazine subscriptions, and the like;
  • Distributing property assets according to what was stated in the will; and
  • Making various court appearances.

The person who is named in the will to be the executor of estate does have the choice to decline the responsibilities to serve as an executor. Additionally, if a person has already accepted the role as executor of estate, they can resign from the position at any time.

A will may name another person as an alternative to serve as an executor. If the will does not name an alternative person to serve as executor, the court will appoint a replacement executor.

Who Can Initiate Probate?

Before initiating a probate proceeding, the estate’s executor must obtain a copy of the death certificate of the decedent. They must also obtain a copy of the will. They will then formally initiate the probate process by filing a “notice of probate” and a “petition for probate” with the court. This notice lists:

  • Creditors;
  • Known relatives of the decedent; and
  • Beneficiaries under the will. It also notifies them that the executor has filed the petition, which is a formal request made by the executor to administer the estate. The presiding judge reviews the petition.

After reviewing the petition, the judge issues letters of testamentary. Letters testamentary refers to a document that is issued by the court, which states that the appointment of the executor is valid. This document also authorizes the executor the power to act on the estate’s behalf. Once the executor receives the document, they can then complete the task of paying creditors of the estate, and distributing assets to beneficiaries.

Should the executor fail to initiate the probate process, any party with an interest in the decedent’s estate may do so instead. It is important to note that a party who stands to gain under the will, such as a creditor or beneficiary, is more likely to successfully initiate probate than a party who owes a debt to the estate. An example of this would be how a beneficiary or creditor is more likely to initiate probate for an estate with significant assets than for an estate with fewer assets.

The presiding judge may remove the executor at any time during the probate proceeding if they are not carrying out their obligations. Executors are legally obligated at all times to act in the best interests of the estate, as well as the beneficiaries.

Can An Executor Be Removed For A Conflict Of Interest?

Frequently, an executor has a conflict of interest with one or more beneficiaries. Some examples of common executor-beneficiary conflicts of interest include:

  • The Executor Attempts To Purchase Property From The Estate: In order to act in the beneficiary’s best interests, an executor should attempt to obtain as much money as possible from the sale of estate assets. As such, a conflict of interest arises when the executor is the buyer of that property, as they will generally try to pay the lowest price possible. This conflict between acting in the beneficiary’s best interests, and the executor’s personal interests as the buyer, would be a conflict of interest;
  • An Executor Has Failed To Produce A Proper Accounting: As part of their duties, an executor must provide the estate’s beneficiaries with an accounting of all assets and distribution of assets. An executor may not provide an accounting out of simple negligence, or they may refuse to give the beneficiaries a proper accounting if the executor is stealing assets from the estate; and
  • The Executor Is Self-Interested: As was previously mentioned, most states allow for executors to also be beneficiaries. An executor beneficiary has an interest in obtaining estate assets as a beneficiary; as such, an executor beneficiary can use their executor authority to place their beneficiary interests over those of the other beneficiaries, which obviously creates a conflict of interest.

If a party with an interest in the will believes that the executor has a conflict of interest, that party can file a petition with the judge and request the executor’s removal. In the petition, the filing party must describe the nature of the conflict of interest, as well as why the executor should be removed from their position.

The court reviews the petition, and if they decide that there are not sufficient grounds to remove the executor, the executor will remain in their position. However, if the court finds that there are sufficient grounds to remove the executor, they will order the executor removed from their position. The court itself will then appoint a new executor who is capable of performing executor duties impartially.

Additionally, the 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.

Do I Need An Attorney To Initiate Probate?

If you are named as the executor in a will and need advice as to how to proceed, you should contact an experienced and local probate lawyer.

An attorney can explain your legal rights and responsibilities as executor according to your state’s specific estate laws. An attorney will also be able to represent you in court if there is a claim that you have a conflict of interest.


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