We constantly deal with questions that go something like this: My Dad died. My brother was named executor in the will, and he’s not doing what it says. What do I do?
Our first question is – was the will admitted into probate?
Our second question is – what assets are subject to probate?
The answers are usually “no”, and “I don’t know”. Often Dad has used some sort of non-probate transfer or co-ownership to deal with his money and property. That being the case there is nothing to probate. Probate only deal with assets that are in the name of the decedent alone, and for which there are no beneficiary designations.
Assuming there are assets to be probated one must apply to the Court to be appointed as “Executor” (in Missouri – Personal Representative). Until and unless that happens being named in the will means absolutely nothing.
Somehow a lot of people just don’t get this. Normally when we have this discussion the result is that there is no need for probate, the role of executor doesn’t actually exist, and the only obligation to do anything on the part of the person so named is a moral one, and not a legal one. If Dad named his son George as a beneficiary on his $100,000 Certificate of Deposit, then the money becomes George’s instantly and automatically at Dad’s death. It doesn’t matter that there is a will telling George to split it amount 4 children. George can do so if he wishes, but has absolutely no legal obligation. Probate is not an option. You either have to use it, or you can’t.