What can be done if my father passed away 6 months ago with a Will that my brother has but he has done nothing with it?

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What can be done if my father passed away 6 months ago with a Will that my brother has but he has done nothing with it?

And it doesn’t seem as though he’s going to. Is there anything that can be done?

Asked on June 4, 2015 under Estate Planning, South Carolina

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

I'm assuming that your brother has been named the executor of your father's estate, which is why you are waiting for him to take action. That being the case, an executor owes the estate a fiduciary duty in handling estate matters and if they fail to properly perform their duties, they may be removed for breach of their duty. And refusing to submit a Will to probate may be such a breach. 

Any "interested person" (e.g. a beneficiary) may file a petition with the court requesting the executor be removed for cause (i.e. the placing the estate into probate). At that point a replacement for them will be appointed by the court.

At this point, you may want to consult directly with a probate attorney as to your rights under applicable state law.


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