Q&A with Loraine: My Sister is the Executor but Isn’t Following Through

Question: How can I force my sister to finalize my dad’s Will? She is the Executor, and the probate court is just waiting for her to complete paperwork. It has been nearly one year, and our mother is upset that she isn’t following through. The Will leaves my dad’s assets to my mother.

Loraine’s Answer: It’s not clear from your question whether your sister is refusing to offer your father’s Will for probate at all, or whether she began the probate process but is now refusing to finish the estate administration. The options available to you differ depending on the situation. Unfortunately, however, no matter what the situation is, if someone is refusing to move forward with probating a Will or dealing with an estate, it may require court involvement or possibly full-blown litigation.

If your sister is nominated as the Executor but has simply refused to offer the Will for probate or to allow someone else to do so, then you should remind her of her responsibilities.

Under Georgia law, if someone possesses a deceased person’s original Will but fails to either offer it for probate or file it with the probate court for ‘informational purposes only’ within a reasonable time after the deceased person’s death, that person is in violation of Georgia law.

This violation is punishable by contempt of court and possible imprisonment. If someone is wrongfully withholding an original Will and refusing to either offer it for probate or file it for informational purposes only, any heir, creditor, or potential beneficiary under the Will can petition the probate court to force that person to produce it so it can be dealt with properly. What is a “reasonable time?” There’s not a set period in the statute, but more than likely, your sister is at least close to having waited too long if it’s been almost a year since your father died.

If your sister has offered the Will for probate and been appointed as the Executor but she is refusing to finish the estate administration and distribute the remaining assets in a timely manner, then your mother, as the beneficiary, may want to start by petitioning the probate court for an accounting. This may nudge your sister into acting. If your sister still refuses to take action and get the estate wrapped up, then your mother’s next steps may be to seek your sister’s removal as the Executor and the appointment of a new Executor.

Your sister may also become responsible for financial damages if her lack of action results in harm to the estate. However, depending on the facts and circumstances, it might not be unreasonable for an estate to be still open and an administration to be in a kind of holding pattern within the first year after a death; so, before your mother takes actions of this sort, she should discuss the situation with an attorney who is experienced in estate-related disputes.

Whatever the situation, if your mother, you, or any other interested party decides that legal action is likely needed to get your sister to act in a proper and timely manner, the person seeking to bring that action should consult an experienced probate attorney, preferably one who handles estate and trust litigation, for help. Estate- or probate-related litigation is not a good do-it-yourself project.

Key Estate Planning Takeaway: When an Executor or nominated Executor fails to perform his or her fiduciary duties under a Will, you’re strongly advised to engage an experienced probate attorney. The attorney can help you communicate with the nominated Executor and protect your interests.

This “Q&A with Loraine” blog series features answers based on responses from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.

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