Probate Mistakes Executors Make

Updated August 6, 2026. Quick answer: the expensive mistakes are not the ones that look expensive. They are paying the wrong creditor first, distributing before the claim window closes, and reading the will as if it still says what it said — each of which can land on the executor personally, not on the estate. Nothing on this page is a criticism of anyone doing this job; most of these are invisible until they have happened.

1. Paying the wrong debts first

This is the one that reaches your own money. Under 31 U.S.C. §3713, a claim of the United States must be paid first out of an insolvent decedent’s estate, and a representative who pays another debt of the estate before satisfying the government’s claim becomes personally liable to the extent of that payment. It does not require bad faith, and not knowing the estate was insolvent is not the protection people assume. The mechanics of the trap are here; the state-law priority order that sits underneath it is here.

The practical rule: if there is any chance the estate cannot pay everyone, pay nobody until you have the order in writing from the statute or from counsel. Funeral bills and the mortgage feel urgent. Urgency is not priority.

2. Distributing before the creditor window closes

The most sympathetic mistake on this list. A beneficiary needs money, the estate obviously has enough, so you advance it — and then a claim arrives inside the statutory window and the money is gone. Getting it back from a beneficiary who has spent it is your problem, not theirs. The claim period is the real clock in probate, and it is the reason a straightforward estate still takes months.

3. Using the decedent’s Social Security number

An estate is a separate taxpayer. It needs its own EIN, and the decedent’s Social Security number may not be used for the estate’s filings (IRS Publication 559). A fiduciary must file Form 1041 for a domestic decedent’s estate if the estate had gross income of $600 or more for the tax year, or if any beneficiary is a nonresident alien. Estates cross $600 more easily than people expect — a few months of interest, a dividend, or a mutual fund distribution will do it.

Related and just as common: mixing estate money with your own. One estate account, opened under the estate’s EIN, with every transaction on it. That account is also your evidence if anyone ever questions what you did.

4. Reading the will as if nothing has changed it

Statutes rewrite wills silently. If the decedent divorced after signing, most states have already revoked the gifts and the fiduciary appointment to the former spouse — Minnesota reads those provisions “as if the former spouse died immediately before the dissolution” (Minn. Stat. §524.2-804), and Florida voids provisions affecting the spouse on dissolution (Fla. Stat. §732.507(2)). If the decedent married or had a child after signing, that person may take a statutory share regardless of what the will says (§732.507(1); Minn. Stat. §§524.2-301, 524.2-302). Which events change a will by operation of law is here.

Distributing off the face of the document, in those situations, means distributing to the wrong people — and the people who should have received it are entitled to come to you for it.

5. Holding on to the original will

The original document usually has to be delivered to the court, and promptly — California’s self-help guide states it flatly: “If you find an original will, you must deliver it to the court”, a step it calls lodging the will, with a copy to the named executor. Keeping the original in a drawer while the family decides what to do is a default many people fall into without knowing there is a duty attached.

The mirror-image problem: a will that cannot be found at all is presumed destroyed with intent to revoke in most states, if it was last in the decedent’s possession (Cal. Prob. Code §6124 is the clearest statement of it). What that presumption takes to rebut is here.

6. Administering assets that were never in the estate

Retirement accounts and life insurance with a living named beneficiary are not estate assets, and joint property with survivorship passes outside the will. The form beats the will. Executors routinely inventory these, occasionally try to redirect them to match the will, and cannot. The reverse error is worse: an account whose named beneficiary predeceased, or whose beneficiary is “my estate”, is estate property and comes with tax consequences most people would have avoided if they had known.

7. Serving when the state will not let you — or serving when you should not

Eligibility is statutory. Florida bars a personal representative who is not domiciled in the state unless they are a close relative (Fla. Stat. §733.304); other states require a resident agent. Being named in the will does not override it.

And you may decline. Nobody is obliged to serve as executor. If the estate is insolvent, the family is at war, or the assets are beyond you, declining before appointment costs nothing and declining after it is far harder. If you do serve, know that the fee you are entitled to is taxable income when taken and that waiving it can be the better arithmetic when you are also an heir — the numbers are here, and what your state would allow is here.

8. Waiting

Delay is the quiet one. Uniform Probate Code states bar most probate and appointment proceedings commenced “more than three years after the decedent’s death” (Minn. Stat. §524.3-108). Before that outer limit, delay still costs: property deteriorates, insurance lapses on an empty house, tax deadlines pass, and the paperwork gets harder as institutions reorganise. The roadmap puts the steps in order, and the first-two-weeks list is deliberately short.

If you are weighing whether to do this without a lawyer at all, that is a separate and answerable question: when pro se is realistic, and when it is not.

Sources, and what we did not verify

31 U.S.C. §3713, read at Cornell LII on 2026-08-04. IRS Publication 559 and the Instructions for Form 1041 (“Who Must File”), read 2026-08-04. Minn. Stat. §524.2-301, §524.2-302, §524.2-804 and §524.3-108, read at the Minnesota Office of the Revisor of Statutes on 2026-08-06. Fla. Stat. §732.507 and §733.304, read at the Florida Senate the same day. Cal. Prob. Code §6124 read at leginfo.legislature.ca.gov the same day; the lodging-the-will line is from the California Courts Self-Help Guide, read the same day.

What we did not verify: creditor-claim periods, bond requirements and inventory deadlines vary by state and are not quoted here — they are cited on the pages that own them. The duty to deliver an original will exists in most states in some form; California is quoted because California is what we read. There are no recommendations, products or affiliate links on this page, by policy.

See methodology, editorial policy and corrections. General information about how these statutes read, not legal advice for your estate — probate codes are amended every session and the read date above is what you are relying on.