What Happens if an Executor Does Not Apply for Probate?

Written by True Tamplin, BSc, CEPF®

Reviewed by Subject Matter Experts

Updated on September 07, 2023

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Not Apply for Probate?

An executor is a person named in a will to manage the deceased person's estate, including their financial obligations and assets.

The executor's responsibilities include applying for probate, a legal process where a court recognizes the validity of a will and authorizes the executor to carry out the terms of the will.

If the executor fails to apply for probate, several potential issues could arise.

Delayed or Halted Estate Administration

If an executor doesn't apply for probate, the administration of the estate may be delayed or even halted.

Without the authority granted by the probate court, the executor cannot legally distribute assets, pay debts, or take other actions necessary to manage the estate.

Legal Challenges

Beneficiaries, creditors, or other interested parties might bring legal challenges against the executor if probate isn't sought when required.

This can lead to a protracted legal dispute, potentially causing stress and financial burden for all involved.

Personal Liability

If an executor does not fulfill their duties, including applying for probate when necessary, they could face personal liability.

This means they may be financially responsible for any losses incurred by the estate or the beneficiaries due to their negligence or inaction.

Replacement of Executor

The court can decide to replace the executor if they fail to apply for probate, especially if this failure negatively impacts the estate or the beneficiaries.

The court may appoint a new executor who will be responsible for obtaining probate and administering the estate.

Consequences of Executor's Failure to Apply for Probate

Legal Options and Procedures if an Executor Does Not Apply for Probate

Appointment of a Substitute Executor

In cases where the appointed executor does not apply for probate, there are legal options to address the situation:

Identifying an Alternate Executor Named in the Will

The first step is to check if the will designates an alternate or backup executor. If such a provision exists, the alternate executor can step in and apply for probate.

Seeking Court Approval for a Substitute Executor

If there is no alternate executor named in the will, it may be necessary to petition the court for the appointment of a substitute executor. This involves providing evidence and reasons for the need to replace the original executor.

Petitioning the Court for a New Executor

When the appointed executor fails to fulfill their responsibilities, it may be necessary to petition the court for the appointment of a new executor:

Demonstrating the Executor’s Failure to Fulfill Responsibilities

To successfully petition the court, it is essential to provide evidence showing that the original executor has not fulfilled their duties or has acted in a manner contrary to the best interests of the estate and beneficiaries.

Providing Evidence Supporting the Appointment of a New Executor

Along with demonstrating the executor's failure, it is crucial to present evidence supporting the appointment of a new executor.

This evidence may include the qualifications and suitability of the proposed new executor, such as their experience in estate administration and their ability to act in the best interests of the estate and beneficiaries.

Court Intervention and Administration

Court Appointment of an Administrator

When an executor fails to apply for probate, the court may intervene and appoint an administrator to handle the estate administration:

Selection of a Qualified Individual to Manage the Estate

The court will carefully consider the qualifications and capabilities of potential administrators before making a selection. This individual may be a professional executor or an attorney experienced in estate administration.

Administrator’s Duties and Responsibilities

Once appointed, the administrator assumes the duties and responsibilities typically performed by an executor. These include inventorying assets, paying debts and taxes, managing estate finances, and distributing assets in accordance with applicable laws and court instructions.

Distribution of Assets in Accordance With Intestacy Laws

In the absence of a will or when the will is deemed invalid, the court follows intestacy laws to determine the distribution of assets:

Determining Beneficiaries Based on Legal Succession Rules

Intestacy laws establish a hierarchy of beneficiaries, typically starting with close family members, such as a surviving spouse, children, parents, and siblings. The court will identify and verify the legal heirs and determine their respective shares of the estate.

Ensuring Fair and Equitable Distribution of Assets

The court aims to distribute the assets in a fair and equitable manner among the eligible beneficiaries. This may involve considering factors such as the relationship of the heirs to the deceased, their financial needs, and any special circumstances.

Legal Options and Procedures if an Executor Does Not Apply for Probate

Consequences of an Executor's Inaction

Delay in Estate Administration

Inaction on the part of the executor can lead to significant delays in the administration of the estate.

Until probate is granted, the executor does not have the legal authority to distribute the deceased's assets or settle their debts, leaving the estate in limbo.

Financial and Legal Repercussions

The executor may face financial and legal repercussions for their inaction. If the delay results in financial loss for the estate or its beneficiaries, the executor could be held personally liable.

This can also apply if the executor fails to pay the deceased's taxes or debts in a timely manner, resulting in penalties or interest charges.

Legal Challenges and Disputes

Beneficiaries, creditors, or other interested parties may initiate legal action against the executor for not fulfilling their responsibilities, including the failure to apply for probate.

Such legal disputes can add stress, costs, and further delay to the administration of the estate.

Removal of Executor

If an executor consistently fails to act or performs their duties inadequately, the court may choose to remove and replace them.

This often requires a petition from an interested party and proof of the executor's negligence or incompetence.

Reduced Confidence in Executor

Inaction can also reduce the confidence of the beneficiaries and other stakeholders in the executor.

This can strain relationships and create conflict, making the estate administration process even more difficult.


Failure to apply for probate can result in asset mismanagement, delays in settling affairs, legal liabilities for the executor, and disputes among beneficiaries. The lack of legal authority hampers asset handling and decision-making.

Delayed settlement affects creditors and beneficiaries. Mismanagement can lead to financial losses and disputes over asset distribution. Options include appointing a substitute executor or petitioning the court for a new one.

Court intervention may involve appointing an administrator and distributing assets according to intestacy laws. The executor's inaction can result in breach of fiduciary duty, impacting beneficiaries' rights and inheritance.

Delays increase costs and prolong the probate process. Estate planning and careful executor selection are crucial for a smooth probate process. Seeking professional advice ensures proper administration and protection of beneficiaries' interests.

What Happens if an Executor Does Not Apply for Probate? FAQs

About the Author

True Tamplin, BSc, CEPF®

True Tamplin is a published author, public speaker, CEO of UpDigital, and founder of Finance Strategists.

True is a Certified Educator in Personal Finance (CEPF®), author of The Handy Financial Ratios Guide, a member of the Society for Advancing Business Editing and Writing, contributes to his financial education site, Finance Strategists, and has spoken to various financial communities such as the CFA Institute, as well as university students like his Alma mater, Biola University, where he received a bachelor of science in business and data analytics.

To learn more about True, visit his personal website or view his author profiles on Amazon, Nasdaq and Forbes.

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