Table of Contents
What Happens When an Executor Fails to Follow the Terms of a Will?
What Assets Must Go Through California Probate?
Signs an Executor May Be Mishandling the Estate
A Real-World Example: Assets Distributed Outside Probate
Key Takeaways
- Executors must follow the terms of the will and California probate law.
- Certain assets must pass through probate before distribution to beneficiaries.
- An executor who distributes estate assets improperly may be personally liable.
- Probate litigation may help beneficiaries recover assets, compel accountings, or remove an executor.
- Delaying action can make it harder to recover estate property or protect an inheritance.
What Happens When an Executor Fails to Follow the Terms of a Will?
An executor has a legal duty to carry out the instructions in the will and administer the estate through the California probate process. That includes collecting estate assets, paying debts and taxes, and distributing property to the correct beneficiaries.
Problems arise when an executor starts acting outside those rules.
In some cases, the executor distributes property before probate is completed. In others, the executor transfers assets informally to family members, ignores specific gifts in the will, or refuses to provide information to beneficiaries.
At The Grossman Law Firm, we often see beneficiaries contact us after realizing that estate assets are disappearing without court approval or proper accounting.
California probate law does not give an executor unlimited discretion. The executor remains accountable to both the probate court and the estate beneficiaries.
What Assets Must Go Through California Probate?
Not every asset passes through probate. However, many assets still require court-supervised administration before distribution.
Common Probate Assets in California
Assets that commonly pass under a California will include:
- Assets owned solely in the decedent’s individual name
- Assets without a designated beneficiary
- Assets not titled in a living trust
- Assets payable to the estate
- Real property or accounts held as tenants in common
An executor generally cannot bypass probate and distribute these assets privately.
For example, if the will leaves the estate equally to three siblings, the executor usually cannot transfer a probate asset to only one sibling without court authority or beneficiary consent.
That type of conduct can trigger probate litigation.
Signs an Executor May Be Mishandling the Estate
Not every probate delay means misconduct. Probate administrations take time, especially when real property, creditor claims, or tax issues are involved.
Still, certain warning signs may indicate the executor is failing to follow the will or violating fiduciary duties.
Common Red Flags
Beneficiaries often become concerned when:
- The executor refuses to share information about estate assets
- Distributions occur before probate approval
- Estate property is sold without explanation
- One beneficiary appears to receive favorable treatment
- The executor mixes estate funds with personal accounts
- Probate filings stop for long periods without explanation
Sometimes the problem starts small. A beneficiary asks for updates and receives vague answers. Then months pass with no accounting, distribution, or explanation from the executor. That is often when disputes intensify into probate litigation.
A Real-World Example: Assets Distributed Outside Probate
The names and circumstances in this example have been modified for privacy.
Lauren contacted The Grossman Law Firm when she felt she wasn’t getting proper answers about her father’s estate.
After their father, Michael, died in Orange County in February 2023, his three adult children expected the estate to move through probate normally.
Michael’s will left his estate equally to his children: Lauren, Daniel, and Erica.
Daniel was named executor.
At first, everything appeared routine. Daniel filed the probate petition and was appointed executor several months later.
Problems developed when Lauren learned that Daniel had already transferred one of Michael’s vehicles to himself before the court approved a final distribution. Soon after, she discovered Daniel had also withdrawn money from one of Michael’s accounts and claimed their father “would have wanted him to handle things informally.”
Lauren contacted The Grossman Law Firm after repeated requests for information went unanswered.
Further investigation revealed several estate assets had been distributed outside the probate process without court authorization. The beneficiaries eventually pursued probate litigation seeking an accounting, recovery of estate assets, and court supervision of the administration.
In situations like this, litigation is often what forces transparency. Through the probate litigation process, The Grossman Law Firm obtained financial records, examined the executor’s conduct, and pursued court intervention to protect the beneficiaries’ interests.
When Probate Litigation Becomes Necessary
California probate courts have the authority to intervene when an executor fails to follow the law or the terms of the will.
Probate Court Remedies
Depending on the circumstances, beneficiaries may petition the court to:
- Compel an accounting
- Recover improperly transferred assets
- Suspend or remove the executor
- Surcharge the executor for financial losses
- Block improper distributions
- Increase court supervision over the estate
Timing matters in these cases.
Once estate assets are transferred, sold, or depleted, recovering them can become more difficult. Financial records may disappear. Real property may change hands. Witness memories fade.
Early legal action may help preserve evidence and protect the inheritance before additional harm occurs. Contact The Grossman Law Firm today if you believe an executor is failing to follow the terms of a will, withholding information, improperly distributing estate assets, or placing your inheritance at risk.
FAQ
Can an executor ignore the instructions in a will?
No. An executor must follow the terms of the will and comply with California probate law.
Can an executor distribute assets before probate ends?
In some situations, partial distributions may be authorized. However, executors generally cannot distribute probate assets informally outside the probate process.
What happens if an executor steals estate assets?
The probate court may order repayment, impose financial penalties, remove the executor, or take other corrective action.
Can beneficiaries request estate information?
Yes. Beneficiaries often have the right to receive information about the probate administration, including inventories and accountings.
Related Resources
Common Questions About Executor Misconduct in California
- Overview of California Probate Litigation
- California Probate Litigation Guide: From Will Creation to Final Resolution
- What Are an Executor’s Duties in California?
- How to Get a Copy of a Will in California as a Beneficiary?
- How to Contest a Will in California
- Can’t Afford a Probate or Trust Attorney?
How The Grossman Law Firm Can Help
At The Grossman Law Firm, we help beneficiaries and heirs throughout California enforce their rights in probate and trust litigation.
Call (888) 443-6590 or fill out our Get Help Now form to learn more.
Our Intake Specialists can evaluate your case to assess your situation at no cost to you. Qualifying cases will be scheduled for a Free Phone Consultation with Attorney Scott Grossman.
Originally Published March 2018