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What happens if an executor delays the probate process?

On Behalf of | Feb 1, 2022 | Probate

Probate is the legal process used to distribute an estate, often guided by a will. The process involves the naming of an executor or personal representative. This individual is responsible for initiating and completing the probate process and has a fiduciary duty to the estate to act in the best interest of the beneficiaries.

This fiduciary duty includes moving the probate process forward in a reasonable manner. In some cases delays are reasonable. In others a delay could signal the executor has failed to meet their fiduciary duty. It is generally reasonable, for example, for the probate process to take longer in instances where there is a will contest or the estate is very complex.

When are delays not reasonable?

Take note if the executor has started remodeling and probating real property, purchasing vehicles, or otherwise taken to spending in a way that is uncharacteristic. There are examples of cases where these actions signal the executor has started to take funds from the estate for their own personal use — a move that is in direct disregard to their fiduciary duties. Legal remedies are often available in these situations.

But how long is reasonable? The answer will depend on a number of factors, including the state. California state law generally requires the personal representative to complete the probate process within one year from the date of appointment. If, however, the personal representative files a federal estate tax this deadline is extended to 18 months. The law requires a personal representative who does not complete the process within this timeline to file a status report with the court to explain the need for an extension.

What are my options for recourse?

If the personal representative fails to file the status report with the court, the beneficiaries can petition the court to order the personal representative to file an accounting or take other actions as needed to close the probate process. A beneficiary could petition the probate court to compel the executor to begin the probate process or to have the executor removed from their position.

These are just a few of the options available to beneficiaries that are concerned about the administration of the probate process.

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