What Happens If a Will is Not Filed
If you’ve recently lost a loved one, you are probably dealing with many things in addition to the grieving process. Part of the process after a person dies is dispersing their estate and taking care of any financial and other obligations they may have had. This includes filing the decedent’s last will and testament with the probate court in the county where they lived. This is an important and necessary step that can have serious consequences if not handled correctly.
How the Probate Process Works
When a will isn’t filed, it affects the way the probate process works. It helps to understand what happens with probate court and how it impacts an estate’s distribution. The first step is to file a will along with the death certificate and a form to petition the court to open probate.
Once you file probate documents, the court will set a hearing. At this time, the will is validated and read to determine who will act as executor or personal representative of the estate. The court will approve the person named and provide them with documents that give them the authority to complete tasks on behalf of the decedent’s estate.
The Job of the Executor
After the hearing, the executor will begin their tasks. Their first job is to notify the beneficiaries about probate. They must also notify any creditors as well, according to state probate law. Some states require them to publish the notice in one of the local newspapers while others want the executor to write letters to the creditors.
The executor must also begin taking inventory of the estate’s assets. They will secure all the assets and get larger items appraised. They must provide this inventory to the probate court with the estimated value of each item.
Paying Debts and the Heirs
Another job of the executor is to file the personal tax return of the estate and pay all the taxes owed. This may include personal income taxes, property taxes, and estate taxes. They will also pay all other outstanding debts, such as medical bills, funeral expenses, legal fees, and mortgage payments. The executor continues to use funds from the decedent’s estate to pay ongoing expenses to maintain the other assets.
Once all debts have been cleared, the executor will distribute the remaining assets to the beneficiaries according to the terms of the will. They will transfer title of any assets that are designated to go to the heir directly.
Closing Out Probate
After these tasks have been completed, the executor will petition probate court to close out probate. They will provide a final accounting of everything that has been done for the estate. Once the court accepts the petition, probate is finished.
This is the process of going through probate when a will is filed with the probate court. If there is no will filed with the court, some things are handled differently.
Why a Will Wouldn’t Be Filed
Since the probate process is rather straightforward, you may wonder why a will wouldn’t be filed with the court. You might be surprised to find that many estates go through probate without a will for various reasons.
The most obvious and common reason is that the decedent didn’t have a will. They never took the time to create one or had any estate planning done to put the assets in a trust.
In other situations, a will exists but isn’t file with the court to begin the probate process. It may have been lost or misplaced. Perhaps the person who had the will has died and no one else knows where it is located. The decedent may have hid the will in their home or business and never told anyone where it was located.
Another reason that a will may not be filed is because the person who has it doesn’t want the named beneficiaries to inherit. They would normally inherit if there is no will, so they prevent the court from finding out one exists for their own financial gain. This is a criminal offense with the potential for criminal charges of fraud to be filed if the will is later discovered.
Still another valid reason to not have a will is if one was presented and found to be invalid. The interested parties may have contested the will and been able to prove the decedent lacked the mental capacity to sign the will.
Searching for the Will
If you believe a will exists, you should search for it. Even if you think a will was created but don’t know for sure, it’s worth your effort to look. You can perform a search of the decedent’s house and other property. Look at safe deposit boxes or check with the probate attorney if they have since retired.
You will want to put in some effort to locate the will. This allows the decedent’s wishes to be honored and prevents the state from making decisions about their property. If you are sure a will exists even though you haven’t found it, you can petition the court for an extension to locate it.
How to Avoid Probate Without a Will
You may wonder if it’s possible to avoid probate without a will. In most cases, the answer is no. You can’t just skip probate because you don’t have a will. Instead, you will need to continue in the same way as if there was a will.
An exception to this rule is if all the assets go directly to a named beneficiary. For instance, a life insurance policy may have someone named as a beneficiary, which would go to them without being included in probate. Bank accounts, retirement accounts, and other financial accounts may have a payable on death beneficiary named.
If the estate was under a certain dollar amount, a small estate affidavit may allow you to start transferring assets to the beneficiary without going through formal probate for the deceased’s estate. Estate law firms can help you determine if this option will work for your situation and allow you to transfer ownership more easily and avoid probate.
What Happens to the Estate If No Will is Filed?
Assuming no will is found, your next concern may be what will happen to the estate. Your first step would be to file a petition to open probate without a will. This is known as probating an estate intestate. You will fill out the applicable forms to begin the probate process. The court will set a hearing as with any probate case. In this situation, the court will appoint someone to act as the personal representative of the estate.
The probate process follows the same guidelines whether a will exists or not. The personal administrator must pay all creditors and file taxes. They will get appraisals and secure the decedent’s assets for the probate estate.
The Difference in Inheritance Without a Will
The difference is seen in what happens during the final distribution of assets. Without a will, the personal representative must go by state probate laws. Each state has its own intestate succession laws for who receives the inheritance from an estate and how much.
The surviving spouse will be the first in line to inherit with any children also inheriting. The division is often half and half, but some states award more to the one party over the other. If there are no children and no spouse, the parents are next in line, following by siblings, then grandparents, aunts and uncles and cousins.
Friends and non-family members don’t inherit when there is no will. The only way to ensure that your best friend or a charity receives part or all of your inheritance is with a will.
What Happens If a Will Isn’t Filed Until Later
Sometimes a will isn’t found at the time probate is opened. It may be that the executor discovered its existence when they were packing up the personal property of the deceased person. Now that they know it exists, they wonder what to do with it.
If a will is filed with probate after the decedent’s death, most states impose a time limit of ten to 90 days following that date. When a will is found later, it will delay the probate process until the court has time to validate it as the official last will and testament of the deceased.
Once the will has been validated, the personal representative must follow those terms for distributing the assets once all debts are paid. If the will is vastly different from the state’s laws regarding inheritances, the heirs may contest it.
What Happens If a Will Isn’t Filed Until After Probate is Closed
If the entire process of probate has been completed and the assets distributed to the heirs, the next step is to close probate. At this point, a countdown begins for how long someone has to petition to have it reopened. One of those reasons for petitioning may be because they found a will. State law dictates different timelines for when a will can be accepted after probate.
In any case, a person must petition the court to reopen probate. The court will determine whether there is cause to open probate for the will. Many times, it will open probate if the will addresses a new asset that has been found.
If the beneficiaries are different in the will than what is included in state probate law, they may file a lawsuit against the executor if they believe the will was withheld intentionally.
If you discover a will after the estate of a family member has been through probate or is in the process now, you should speak with a probate attorney. They will advise you on what to do and how to ensure the decedent’s wishes are honored.