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  • Writer's pictureKyle Persaud

What Happens If the Executor Does Not Probate the Will?

When someone writes a will, they typically name an executor – the person who is in charge of filing a probate of the will in court, managing the estate, paying the creditors, and distributing the estate to the heirs. But what happens if the executor doesn’t probate the will?


If the executor doesn’t probate the will, that doesn’t mean the estate can’t be distributed. Oklahoma law has specific provisions for what happens if the executor doesn’t file a probate like he’s supposed to.


Oklahoma Statutes, Title 58, Section 108 says that if the named executor doesn’t file a probate action, the court may appoint “any other competent person” to be the executor.

Title 58, Section 22 says that any person “interested in the estate” may file for probate. The law doesn’t clearly define who is “interested in the estate.” But there are a few court cases that shed light on the issue. In Matter of Estate of Maheras, the state supreme court allowed the pastor of a church to file a probate when the decedent had left a will devising most of her property to the church; the court said that the pastor was “interested in the estate.” In Murg v. Barnsdall Nursing Home, the same court held that the nursing home in which the decedent resided at the time of her death was not “interested in the estate.”


Title 58, Section 122 contains more specific provisions. This statute says that if a person dies without a will, then the following persons have a right to be appointed executor, in the following order:


“1. The surviving husband or wife, or some competent person whom he or she may request to have appointed.

“2. The children.

“3. The father or mother.

“4. The brothers or sisters.

“5. The grandchildren.

“6. The next of kin entitled to share in the distribution of the estate.

“7. The creditors.

“8. Any person legally competent.

“If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate.”


By the terms of this statute, it only applies to persons “dying intestate”; that is, people who die without wills. However, in Matter of the Estate of Dickson, the state supreme court held that this statute also applies to people who die with wills.


This means that if the named executor doesn’t file a probate of the estate, look at Section 122 to see who has priority to file next.


Are you the heir to an estate that the executor has failed to probate?


If you are the heir or creditor of an estate and the executor has failed to probate the estate, you may have the right to file a probate yourself. You may wish to speak to an attorney about this issue. The Persaud Law Office has handled many probate cases, and we can help you. Contact us today.

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