What To Do If Executor Does Not Follow The Will?

Introduction

In the state of Arizona, the probate process is dictated by the Uniform Probate Code (UPC) and regulated by Arizona Revised Statutes Title 14 (ARS 14).

When someone passes away, their estate is settled, distributed, and closed through probate. If the decedent has a last will and testament, the will should nominate a family member or friend to serve as their estate’s executor (aka personal representative). The executor will be tasked with handling the affairs of the estate through probate and will be personally responsible for ensuring the decedent’s final wishes and instructions are carried out according to the will.

How is the Executor Appointed?

Most people leave the primary copy of their last will and testament with their executor. When the testator dies (the testator is the person who wrote the will), the executor will need to submit the will to the county probate court within 30 days of the testator’s passing.

The executor will then submit a petition with the county probate court to open probate for the testator’s estate. The petition usually asks for information on the decedent, their family, a summary of the estate’s assets and liabilities, and a request for the nominated executor to be formally appointed by the court. As long as there are no contests to the will or objections to the executor, the court will usually appoint the executor without a formal hearing.

What are the Executor’s Responsibilities?

Once an executor has been formally appointed, they’ll have 5 important responsibilities:

1. Initiate non-probate transfers to designated beneficiaries – not all assets need to pass through probate. Any assets that have a designated third-party beneficiary listed on the account (e.g. IRA, joint tenant property, life insurance) can pass to the beneficiary automatically, outside of probate court. The executor (or any interested party, for that matter) will just need to submit a copy of the death certificate to the financial institution holding the assets, and the financial institution will usually process the transfer in 1 – 2 weeks.
2. Notify creditors – the executor is required to serve notice of the probate proceedings to all of the estate’s known creditors. The executor will also need to post an ad announcing the probate in the local newspaper once a week for three weeks, to notify any unknown creditors of the probate proceedings. The estate’s creditors will have four months from the date of the first notice in the newspaper to submit their claims to the estate.
3. Value the assets – before the executor can start cutting checks to creditors and beneficiaries, they’ll need to have an inventory of the estate’s assets and its fair market value. Liquid assets like bank and brokerage accounts are easy to value with the most recent account statements, but illiquid assets like real estate, vehicles, and personal possessions may require professional appraisal.
4. Settle the liabilities – once the estate’s creditors have been given at least four months to submit their claims to the estate, the executor can begin to settle the estate’s liabilities. The estate will be responsible for paying all administration fees (court costs, attorney fees, appraisal fees), funeral costs, debts, taxes, and outstanding bills.
5. Distribute the remaining assets – the executor can only begin to distribute probate-assets after all of the liabilities are settled. If the estate is insolvent (meaning there are more liabilities than assets), none of the beneficiaries in the will can receive anything. As long as there are residual assets, the executor is legally required to distribute them according to the will’s instructions.

The Executor’s Fiduciary Duty

Throughout the probate process, the executor has a fiduciary duty to manage the estate’s assets with the same level of care that a prudent investor would use to handle their own investments. An executor can be held liable for failing to prudently manage the estate’s assets.

How Long Does it Take to Distribute an Estate?

As long as there aren’t any contests to the will or objections to the activities of the executor, probate can proceed informally with no court supervision. Informal probate can wrap up in as little as 5 months, but most informal probate cases in Arizona take about 6 – 8 months.

If there are contests or objections that require hearings, the probate process will need to proceed formally with additional court supervision. Depending on the complexity of the case and the level of court supervision that’s necessary, formal probate can take up to a year or longer to conclude.

How to Contest the Actions of the Executor

When an executor fails to follow the instructions in the decedent’s will or is remiss in their responsibilities, you have the right to file a complaint against the executor. Here’s how you can contest the actions of an executor:

1. Enlist professional assistance – before taking any action, you should consult with a probate attorney. The attorney can assess the validity of your objection, help you gather the necessary evidence to support your claim, and properly file your complaint against the executor. If there is evidence of financial misconduct, your attorney may recommend hiring a forensic accountant, too.
2. Serve notice to the executor – when the executor is a family member, it’s usually best to resolve the issue outside of court when possible. Draft a notice of your complaint, have a courier serve the notice to the executor, and file proof of the notice with the county court. Ideally, the executor will correct their mistake and no further action will be necessary.

• File a complaint – if the executor won’t comply with your notice, you’ll need to bring the complaint to the court’s attention. File a petition with the probate court and ask the judge to schedule a hearing.
• Demand an accounting – if your petition is valid the probate judge will demand an accounting from the executor to check their activities for inaccuracies or fraud. If the court doesn’t request an accounting from the executor, you have the right to demand an accounting as an interested party.

If the court finds evidence that the executor committed an honest mistake, the action will be corrected, and the executor will probably be allowed to continue in their position. If the mistake was intentional, or if there is evidence of fraud or neglect, the executor will be removed, and the judge will appoint a new personal representative. Most of the time the replacement is another family member, but the court has the ability to appoint a third-party special administrator if necessary.

How to Contest a Will

In some cases, the problem isn’t that the executor isn’t following the will—the problem is that there’s a mistake within the will itself. You can contest an invalid will for the following reasons:

• There is a more recent version of the will
• The testator’s signature or material provisions in the will were forged
• The testator was mentally incapacitated and not of sound mind
• The testator was under duress or undue external influence
• The will was improperly witnessed

If you’re able to successfully contest the will, the judge will have to decide if the will is partially or fully invalid. If there are other versions of the will, the judge may look to those documents to assess the intentions of the testator. Where any parts of the will are invalidated, the assets that are addressed in that portion will become subject to the state’s intestacy laws.

For long-term peace of mind, contact us to set up a consultation today. We look forward to helping with your will and other estate planning needs.

Call our Estate team at (480)467-4325 to discuss your case today.