What if the executor does not probate the will?

Executor of a will

In WA State, if someone dies with a will, they will have typically named an executor to carry out their final wishes–the executor can be an heir, family friend, attorney, or other professional assigned in the estate plan (if it’s been more than 2 years since the person passed away, the person in that role is then called an administrator instead of an executor). If there is no will, the deceased person’s estate is subject to intestate succession, which is basically just the default rules for who inherits from the deceased person’s estate, as outlined in Washington Code. Most people naturally know these rules without having to look them up, but it can get complicated when there are children from prior marriages, or other complicating factors. 

There are default rules about who should perform the work if there is no will or no designated executor in the will. The executor has what’s known as a fiduciary duty to administer the last will and testament according to the instructions executed by the deceased person, unless those instructions are impossible or illegal. In simple terms, that means that the executor must comply with the will, look out for the best interests of the beneficiaries (also called heirs), must be loyal to the beneficiaries, and otherwise not waste assets of the estate or fail to perform their legally required duties. Executors are issued Letters Testamentary (or Letters of Administration for Administrators) early in the probate process so that they can “muster” (or collect) and distribute assets; this grants them a good deal of power, so it’s important that they are honest and trustworthy.

Typical Steps for Executing the Will

When the deceased (also known as the decedent)’s estate goes through probate, there are numerous steps that are required, usually including filing a copy of the will if it’s known, identifying, locating, and providing notices to heirs and creditors, making an inventory of all the assets of the estate, and ensuring that the assets are distributed according to the terms of the will or the default rules (intestate succession) under Washington code. Once the will is proven valid and legal in court and all other legal steps for probate have been met, the estate is distributed to the beneficiaries. 

Unfortunately, in some cases, the executor may not probate the will, leaving those named in the will in an awkward situation. In this instance, we would want to know several things before taking action. You’ll want to know:

• Was the will properly executed?

• Was the will properly witnessed?

• Are there any missing formalities in the will?

• Are there multiple wills?

There is always a possibility that the executor has determined that the will is invalid. 

If it turns out that the issue isn’t about authenticity or the proper version of the will, you would then need to find out if the executor is aware of the will. If they are aware of the will, they may be intentionally refusing to probate.

Why would someone refuse to probate the will?

An executor may refuse to probate the will because someone else is named as a beneficiary for property that the executor may want themselves. Maybe the will requires significant additional work for the executor in finding remote beneficiaries or taking certain steps with property that are difficult. If there’s no urgency to transfer the assets, they may not want to go through the trouble. Regardless, in cases like these there are steps you can take to ensure that the testator’s wishes are fulfilled and the estate is properly administered as planned in the will.

What should I do in that case?

1. Formally notify the executor

2. Contact a probate attorney to discuss bringing a Trust and Estate Dispute Resolution Act (TEDRA) claim to compel compliance with the terms of the will

3. Change the executor through the court if necessary

TEDRA claim

If you’ve notified the executor of the will and the will was properly executed with no contest, then you can submit a Trust and Estate Dispute Resolution Act claim, also known as TEDRA action. A TEDRA claim uses the power of the probate court to compel the executor (or administrator) to comply with the law and provides protections to beneficiaries to ensure that their interests are not harmed by improper actions taken.. 

In layman’s terms, this means the people named in the will are claiming that the terms of the will are not being properly met. Here are a few more useful facts about a TEDRA claim:

• TEDRA claims are barred after closure of the estate, so you must act while the estate is still open and pending / being probated, or you may lose your right to correct the problems you see. 

• TEDRA claims DO allow for recovery of attorney’s fees, so as long as you’re correct that the will is not being properly administered and there are assets and/or a bond available, you’re less likely to lose money from bringing a TEDRA action to fix the problems.

• These claims usually end up going to arbitration pretty quickly. The whole purpose is to allow people to challenge and raise claims without contesting the will itself.

TEDRA actions are also available to heirs with complaints about the administration of an estate that is subject to intestate succession. Basically TEDRA claims are available for any claim of mismanagement of a trust or estate.

Do I have to go through probate?

Not necessarily. In some cases, the statutes don’t require that you open a probate. Smaller estates (those with less than $100,000 in personal property (meaning anything other than land/real property), and with no real property titled in ONLY the decedent’s name) generally won’t require probate. Heirs to such estates can generally skip opening a formal probate with the Superior Courts and instead just distribute any assets left after the debts of the decedent are satisfied. The heirs should still follow either the terms of the will or the Washington Code’s default rules for distribution, which usually require that the closest living relatives (spouse, children, or parents, as applicable) will inherit the decedent’s property. Even if a formal probate isn’t legally required, an experienced attorney can help guide you on the proper way to settle up the decedent’s affairs.

Remember, if the decedent owned real property titled in ONLY their name, the heirs need to open a probate if they wish to take title to that property.

If you or your loved ones need help with an estate situation, contact Funke Law Firm today! Or better yet, plan ahead with our estate planning services. To see a full list or our services, click here.