Technically, an estate can stay open indefinitely, but there are many consequences to never closing an estate, and some jurisdictions have recurring processes in place that require executors to prove that meaningful progress is being made.
In essence: If the executor, executrix, or personal representative is trying to sell a home or other assets according to the specific directions of the will (if it exists) or intestacy laws (if a will doesn’t exist), and performing with a sense of fiduciary duty, there isn’t any impending deadline where beneficiaries suddenly lose all of their inheritance or when executors are slapped with some sort of fine out of nowhere.
There just needs to be evidence of progress, really.
What happens if an estate is never closed?
Let’s play this out though— What if a family just never does anything?
- You, or the beneficiaries/heirs have no right to any of the assets that are required to go through probate.
- Depending on the decisions made with the probate assets, there may be criminal or financial repercussions since ownership has not been resolved.
- Some assets may be lost or claimed by the state (a.k.a. heirs can lose their right to certain things).
- The time a creditor has to ask for a debt to be paid (statute of limitations) lasts longer. This is why filing notice to creditors early on in probate is so important.
Apathy has consequences. Imagine if a house is supposed to be inherited but no one steps up to pay and manage the mortgage? That could force the bank to foreclose on the home.
Or say a family lets insurance expire and then a fire destroys the house. That is a tragic situation that could have been avoided by a bit of initiative.
What to do with an executor who isn’t closing the estate?
If an executor isn’t doing what they should, beneficiaries have a few options:
- Ask them why they aren’t doing it. There may be a reason for the tardiness you aren’t aware of. And if they just don’t want to do it, they always have the right to decline being the executor. Sometimes reminding people they can let someone else do it is all it takes.
- Give them a formal warning alongside a lawyer. Before involving the probate court, you can just send them a more formal warning to get moving.
- Petition the court to force the executor to take action. You can petition the court to get involved and force the executor’s hand.
- Ask for an accounting. Beneficiaries always have the right to ask for a report of actions and accounting done by the executor— with or without a formal petition to the probate court.
- Ask for the executor’s removal. If nothing is working and/or you think the executor is neglecting their duty or engaging in illegal activity, you can petition the court to conduct a formal inquiry that may result in a new executor being appointed.
Probate and estate settlement deadlines you should know
While we’re thinking about timelines and deadlines, let’s look at some specific probate and estate settlement deadlines:
#1 You have 10-90 days after death to file a will.
Most states have a deadline for filing a will, assuming a valid will was left behind or exists.
If you don’t file a will within the recommended timeline, you won’t be considered a criminal or anything, but you may have to answer for the consequences of that delay. For example, if failing to file a will results in the person’s belongings being distributed differently, that beneficiary may have a right to sue you for the difference.
This obviously excludes malicious intent like hiding or ignoring a will, which is a criminal activity.
#2 Nominated executors usually have 30 days after a will is filed to initiate probate.
If you have been named the executor, executrix, or personal representative in a will, you usually have around 30 days from the date of will filing to initiate probate with the probate court.
If the person passed intestate or if the executor doesn’t submit a petition for probate, any interested party to the estate (family, beneficiaries, creditors) can choose to initiate probate.
Keep in mind: determining what type of probate the estate needs is an important consideration before starting probate, and many families could save a ton of time opting for the simplest path possible.
📖 For more on that, check out our Beginner’s Guide to Probate
#3 Creditors usually have between 30 to 120 days to claim a debt against an estate after notices to creditors have been distributed.
One of the most important jobs of an executor is to file notice to creditors. This is when you contact anyone who is owed money by the deceased. This is done most commonly in the local newspaper and/or a digital listing.
After you attempt to contact creditors, they usually have between 1-4 months to get back to you about getting paid. If they don’t, that debt is forfeit.
That’s why it’s important to do this early — the sooner you start the clock on them, the more likely some of them may miss their chance to claim a debt, potentially leaving the beneficiaries with more assets.
📖 Read more: 6 Steps to File Notice to Creditors During Probate (and Not Go Bankrupt)
#4 File the tax return on behalf of the deceased or estate by the following tax season.
It’s a best practice for executors to file a tax return for the deceased or estate by the following tax season. If you don’t, you could owe extra penalties and interest.
The probate process can move slowly, so start sooner rather than later
Even if you’re tempted to take things slow, finding the time to finish that first big push of filing the will, seeing if you can avoid probate, picking the appropriate probate level, and petitioning the court to begin probate is a good call.
Probate courts are super slow anyway, so it won’t feel like a sprint afterward, and initiating probate lets you receive your letters of administration or letters testamentary that allow executors to start accessing sensitive accounts and creating an inventory of assets.
If all of that still sounds a bit confusing, have a look at our guide for How to Succeed an Executor as a more detailed breakdown of everything executors are responsible for.
