Suppose you were notified about your status as an estate beneficiary over a year ago, but you still have not received your inheritance. When you asked the executor what was going on, they said that your inheritance was late because probate was still going on. You may be wondering: How long does probate take?.
The probate process can take months or even years, which can be annoying if you have to wait a long time to get the money that a loved one who has died left you.
Also, if you’ve been waiting too long for your inheritance and the executor or administrator hasn’t given you a good reason, you should be very suspicious.
Although benign factors (e.g., your loved one having died with substantial debts) could cause distributions to take longer than anticipated, harmful factors (e.g., the executor stealing from the estate or slacking on their duties) could as well.
The only way for a beneficiary to determine whether valid reasons exist for their inheritance being delayed is to play an active role in the estate administration process. This way, they’ll notice if anything is amiss with their inheritance and can investigate the matter further.
Before delving into the issue of how long the executor has to pay the beneficiaries, read our overview of probate in the next section, which may shed some light on why your inheritance may take a while to get to you. Table of Contents
Probate is the court-supervised process a decedent’s estate must pass through if they died with “probate-able” assets, which are assets that were individually owned by the decedent and are not being transferred through other means, such as by a trust, deed or beneficiary designation.
Estates containing probate-able assets must pass through the probate process whether someone dies without a will or with a will. This is to ensure estate assets are passed on to heirs in accordance with the laws of intestate succession (if the decedent died without a will) or to beneficiaries in accordance with the terms of the decedent’s will (if they had one).
For small, non-complex estates, there may be simplified probate procedures (e.g., small estate affidavit or spousal property petition) that can be used in place of a formal probate.
Probate is supervised by the personal representative of a decedent’s estate. If a decedent died with a will, the personal representative usually will be the executor named in the will. If a decedent died without a will or the court decided to appoint someone other than the executor named in the will, the personal representative will be referred to as the administrator, and they usually will be a close relative of the decedent.
The probate process generally is initiated by the named executor or tentative administrator lodging the decedent’s will with the court (if there is a will) and filing a Petition for Probate. Once the court receives the petition, it will set a date for the initial probate proceeding, which is where an executor or administrator of the estate will be appointed to oversee the probate process and make distributions of estate assets to beneficiaries or heirs upon its completion.
An executor or administrator cannot access estate assets or take any actions on behalf of the estate until they are officially appointed by the court.
Whoever files the probate petition must mail a notice to all persons mentioned in the will and all of the decedent’s heirs-at-law (i.e., those persons who would stand to inherit from the decedent if the decedent died intestate) at least 15 days prior to the date of the initial probate proceeding. This way, if any interested party wishes to have the will’s admission into probate denied for any reason, they can either file a written objection in advance of the proceeding or appear in court to object to it in person.
Ever been in that frustrating situation where you’re named as a beneficiary in someone’s will, but the executor seems to be dragging their feet on paying you what you’re owed? You’re not alone! As someone who’s helped countless clients navigate these murky waters, I’ve seen firsthand how this situation can tear families apart and create lasting wounds.
Today I’m going to answer that important question: Can an executor refuse to pay a beneficiary? The short answer is yes, they can sometimes, but there are strict rules about when this is okay and when it becomes something you can fight back against.
Let’s break down everything you need to know about executor responsibilities, valid reasons for withholding payment, and what you can do if you believe an executor is unfairly refusing to distribute your inheritance.
What Exactly Does an Executor Do?
It’s important to know what an executor does before we talk about whether they can refuse to pay you. An executor is the person named in a will to take care of the estate of a person who has died. They’re not just picking random people to decide what to do with the money and property; the law gives them certain duties.
Their responsibilities include
- Locating and filing the will with the probate court
- Identifying and taking inventory of the deceased’s assets
- Paying off any outstanding debts and taxes from the estate
- Distributing the remaining assets to beneficiaries according to the will
The most crucial thing to remember is that executors have what’s called a fiduciary duty to the estate and its beneficiaries This fancy legal term simply means they must act in your best interest, not their own They can’t just do whatever they want with the assets.
Valid Reasons an Executor Might Not Pay a Beneficiary
First, remember that there are instances when an executor can rightfully not disperse money. For instance, debts and taxes must be paid before the estate can be dispersed. If there isn’t anything left over, beneficiaries may not receive what they expected.
Let’s look at the legitimate reasons an executor might withhold payment:
1. Outstanding Debts and Taxes
Before giving out assets, the executor has to pay off all of the estate’s debts and taxes. These might include:
- Funeral expenses
- Medical bills from the deceased’s final illness
- Mortgage payments
- Credit card debts
- Federal and state income taxes
- Estate taxes
If paying off these debts leaves little or nothing in the estate, the people who are supposed to get the money might not get it at all, or they might get less than they expected.
2. Ongoing Estate Administration
Settling an estate takes time—sometimes a lot of time. The executor needs to:
- File necessary paperwork with the probate court
- Take inventory of all assets
- Have properties appraised
- Sell assets that need to be liquidated
During this process, which can take months or even years for complex estates, the executor can’t distribute assets until they have a clear picture of the estate’s worth and obligations.
3. Will Contests or Disputes
If someone challenges the validity of the will or there are disputes among beneficiaries, the executor may need to withhold distributions until these legal matters are resolved. Courts often freeze estate distributions during pending litigation.
4. Specific Time Provisions in the Will
Sometimes, a will contains specific instructions about when beneficiaries should receive their inheritance. For example, a beneficiary might only receive their share upon reaching a certain age or milestone.
5. Beneficiary Debts to the Estate
If a beneficiary owed money to the deceased, the executor can use the “right of setoff” to deduct that debt from the beneficiary’s inheritance.
When an Executor CANNOT Refuse to Pay a Beneficiary
While there are legitimate reasons for withholding payment, there are many situations where an executor refusing to pay a beneficiary crosses the line into illegal territory.
An executor cannot:
- Ignore the terms of the will
- Favor certain beneficiaries over others
- Withhold distribution without a valid legal reason
- Use estate assets for personal gain
- Fail to communicate with beneficiaries about the estate administration
- Indefinitely delay distribution of assets when the estate is ready to be closed
25 Things Executors Cannot Do When Managing an Estate
Understanding what an executor cannot do helps beneficiaries recognize when their rights are being violated. Here’s a comprehensive list of executor no-nos:
- Carry out the will before the testator dies
- Steal from the estate
- Sign the will on behalf of the deceased
- Change provisions in the will
- Stop beneficiaries from contesting the will
- Take action to manage the estate prior to being appointed executor
- Fail to follow the terms of the will
- Mismanage estate assets (bank accounts, stocks, retirement accounts)
- Fail to take inventory of assets
- Be negligent or careless in investing assets
- Sell property below market price
- Fail to distribute assets
- Fail to pay creditors
- Fail to pay estate debts
- Fail to pay funeral expenses
- Fail to file an estate tax return if required
- Fail to pay estate taxes and back income taxes
- Mismanage a testator’s business or sell it below market value
- Take over the testator’s business for the executor’s own gain
- Commingle estate funds with personal funds
- Keep estate funds in a personal account (an estate account is required)
- Fail to communicate with beneficiaries
- Keep beneficiaries misinformed about estate and financial matters
- Favor one beneficiary over another
- Refuse to distribute assets to beneficiaries without a valid reason
My Story: When an Executor Went Rogue
I remember working with a client—let’s call her Sarah—whose brother was the executor of their mother’s estate. Sarah was supposed to receive 50% of the estate, but months went by with no distribution and minimal communication from her brother.
When we investigated, we discovered he had been using estate funds to renovate his own home, claiming it was “temporary” and that he would replace the money. He’d also been paying himself an excessive executor’s fee without court approval.
This was a clear breach of fiduciary duty. We filed a petition with the court, and the brother was removed as executor. A neutral third party was appointed, and Sarah finally received her inheritance, plus damages for the misused funds.
The point is: executors who fail to fulfill their duties can and should be held accountable.
Signs an Executor May Be Improperly Withholding Your Inheritance
How do you know if an executor is legitimately taking their time or improperly withholding your inheritance? Watch for these warning signs:
- Lack of transparency: The executor refuses to provide information about the estate’s assets or the progress of administration.
- Excessive delays: While estate settlement takes time, unreasonable delays without explanation are suspicious.
- Personal use of estate assets: The executor is living in the deceased’s house, driving their car, or otherwise using estate assets for personal benefit.
- Favoritism: Other beneficiaries receive their distributions while you’re still waiting.
- Excuses and avoidance: The executor always has a reason why they can’t discuss the estate or make distributions.
Steps to Take if an Executor Refuses to Pay You
If you believe an executor is improperly withholding your inheritance, don’t just sit back and accept it. Here’s what you can do:
1. Request Information and Accounting
Start by formally requesting information about the estate administration and a full accounting of the estate’s assets and expenses. In many jurisdictions, beneficiaries have a legal right to this information.
2. Send a Demand Letter
If the executor doesn’t respond to informal requests, have an attorney draft a formal demand letter. This letter should:
- State your rights as a beneficiary
- Outline the executor’s legal obligations
- Specify what information or distribution you’re seeking
- Set a deadline for response
- Explain the legal consequences of non-compliance
3. Petition for Court Oversight
If the demand letter doesn’t get results, you can petition the probate court for supervision. The court may require the executor to:
- Provide a full accounting of the estate
- Explain delays in distribution
- Set a timeline for completing the estate administration
4. Request Executor Removal
In cases of serious misconduct, you can petition the court to remove the executor and appoint a successor. Grounds for removal include:
- Breach of fiduciary duty
- Self-dealing
- Mismanagement of estate assets
- Failure to follow the terms of the will
- Conflict of interest
5. File a Civil Lawsuit
As a last resort, you might need to sue the executor for breach of fiduciary duty. If successful, the executor may be personally liable for:
- The value of your inheritance
- Legal fees
- Additional damages in cases of fraud or malicious conduct
Real-World Example: Executor Removal Case
In a 2003 case (In re Estate of Johnson), beneficiaries successfully petitioned for the removal of an executor who had failed to distribute assets for over two years without justification. The court not only removed the executor but also ordered them to pay the beneficiaries’ legal fees because their conduct had forced the beneficiaries to take legal action.
FAQ: Your Burning Questions Answered
How long can an executor take to settle an estate?
Estate settlement typically takes 6-18 months, but complex estates can take years. However, there should be progress and communication throughout the process.
Can an executor decide who gets what property?
An executor must follow the will’s instructions. If the will doesn’t specify who gets particular items, the executor may have some discretion, but they must still act fairly and in the best interest of all beneficiaries.
Can an executor override a beneficiary?
An executor can override a beneficiary only when following the will’s explicit instructions or when legal circumstances require it. They cannot simply decide to ignore a beneficiary’s rights.
Does an executor have to show accounting to beneficiaries?
Yes, executors generally must provide beneficiaries with an accounting of the estate, showing all assets, income, expenses, and distributions.
Can an executor sell property to himself?
An executor can sell property to himself, but only at fair market value after proper appraisal. They cannot give themselves a discount, as this would breach their fiduciary duty.
Protecting Yourself as a Beneficiary
Knowledge is power when it comes to protecting your rights as a beneficiary. Here are some proactive steps:
- Request regular updates: Ask the executor for periodic updates on the estate administration.
- Know the will’s contents: Get a copy of the will to understand what you’re entitled to.
- Document everything: Keep records of all communications with the executor.
- Understand timeframes: Learn about reasonable timeframes for estate settlement in your state.
- Consult an attorney early: Don’t wait until problems become severe to seek legal advice.
Wrapping It Up: Know Your Rights!
So, can an executor not pay a beneficiary? While there are legitimate reasons for temporary delays in distribution, an executor cannot permanently withhold assets that rightfully belong to beneficiaries without valid legal grounds.
As a beneficiary, you have rights, and executors have legal obligations. Understanding these rights and obligations is your first line of defense against executor misconduct.
If you’re facing this situation, don’t hesitate to seek legal advice. The sooner you address potential problems, the better your chances of protecting your inheritance and avoiding lengthy, expensive legal battles.
Have you ever dealt with an uncooperative executor? Drop a comment below about your experience—I’d love to hear your story and might be able to offer some advice!
Remember, while patience is important during the estate settlement process, that doesn’t mean you should sit idly by if you suspect something isn’t right. Stand up for your rights and get what’s rightfully yours.
How Long Does Probate Take Without a Will?
The same steps required to complete probate when there is a will generally are required to complete probate when there is no will; therefore, the probate process without a will may take roughly the same amount of time — around nine to 24 months on average — as probate with a will.
It might take less time to go through probate without a will because intestate succession laws aren’t usually open to challenge like wills are. Any litigation, whether it be a will contest or property dispute, is likely to prolong the probate process.
The laws about intestate succession are also clear about which heirs are entitled to an inheritance and how much of the estate each heir should get. For instance, it is set in stone that a surviving spouse should be given 10% of the community property and a share of the deceased’s separate property, which is decided by what other heirs the deceased left behind.
How Long Does the Executor Have to Read the Will?
Movies and TV shows often depict the executor reading the will aloud to beneficiaries and other members of a decedent’s family shortly after the decedent’s death; however, in California, it is not required for the executor to read the will.
That said, the executor (or whichever party files for probate) is required to mail notice to beneficiaries and the decedent’s direct heirs at least 15 days prior to the initial probate proceeding, as we already discussed.
Known and reasonably ascertainable creditors of the decedent must be notified of the decedent’s death as well. The personal representative should do this by publishing administration of estate notices in a local newspaper for at least 15 days.
Failing to notify interested parties in a timely fashion could result in probate being delayed. Suppose a beneficiary wasn’t notified about the initial probate hearing, but finds out about it six months after the fact. They potentially could bring a will contest to try to have the will’s admission into probate revoked on this ground, which likely would prolong the probate process.