What If the Executor Does Not Probate the Will

Probating the will is a legal requirement.

When a person dies, someone will need to probate the will to ensure the deceased’s estate goes to the designated heirs. An executor is appointed to oversee the dispersal of the estate and to have the will probated. This is usually a simple legal process as determined by state probate laws where the court determines who should act as executor once the will has been filed with the court along with a petition to open probate. However, there can be many consequences if the executor fails to probate the will when the individual passes.

How the Probate Process Works

It’s helpful to understand how the probate process works to have a better knowledge of what to do when someone fails to uphold their duties. After a person passes away, someone will need to file probate documents, which includes a copy of the death certificate, the last will and testament, and a petition to open probate with the probate court in the county where they lived.

The court will set a hearing where it will validate the last will and testament and appoint someone to act as executor or personal representative for the probate case. This may be the probate attorney, the surviving spouse, or another person designated in the will. Upon court approval, it will provide letters testamentary to the executor, which allows them to act on behalf of the estate. It essentially gives them the power to perform their duties.

Duties of the Executor

These duties for the estate include notifying the heirs and any known creditors. Some states require the executor to publish notice of probate in a local newspaper. All parties with a claim have a time limit for when they can pursue payment against the estate, which varies by state law.

While the estate executor is waiting for claims to come in, they must also secure and take inventory of all estate assets of the deceased person, including personal property, real property, and financial accounts. This can be a lengthy process, depending on what the decedent owned. They may need to have real estate and other items appraised to determine the value.

The executor pays all claims that come in and files personal taxes for the estate and pays any taxes owed. This may include estate taxes and property taxes as well as personal income taxes. They continue to pay all ongoing expenses on the estate until it has been distributed to the intended heirs according to the decedent’s wishes.

Once all the debts have been taken care of, including medical bills, funeral expenses, and other outstanding debts, the executor can distribute the remaining assets of the estate property to the heirs. This process may include transferring assets to the beneficiary by title or selling it and distributing the funds to the heirs.

Petition to Close Probate

The executor must also present an accounting record to the probate court as part of the probate process. The court will approve the record and close probate if all tasks have been completed according to the will.

The probate process can be quite lengthy and complicated. However, none of it can take place if the executor does not probate the will.

Reasons Not to Probate a Will

You may wonder why someone would fail to probate a will, especially since many times they are also one of the beneficiaries. It’s more common than you might think for this to happen and for several reasons. The will may have been written many years ago and the person named as the executor has died or is unable to perform their fiduciary duty. They may have moved away or just not want to handle this responsibility.

Sometimes, the will may be lost or destroyed. A newer will may have been created that no one is aware of. In this instance, the beneficiaries may assume the estate is intestate or without a will.

The Executor Must Meet Filing Requirements

Even if the executor doesn’t want to perform their duties, they can’t forget that they were appointed by the decedent. If they choose to ignore the task and keep the will in a drawer someplace, they could be penalized based on the financial impacts to the heirs.

The correct process for the person named as executor or personal administrator of the estate is to file the will with the county probate court along with a copy of the death certificate. They are required by state law to file the will by a certain time after the decedent’s death. The exact timeframe may vary by state. Some give specific deadlines, such as 30 days after the death. Others just state that it should be filed in a timely manner.

Most states don’t require the executor to perform any other duties, such as filing a petition to open probate. The assets of the estate could remain as they are indefinitely if no one takes up the task to begin probate.

Filing a Will is Different from Opening Probate

One of the areas of confusion for many people is that probating a will doesn’t mean that probate is open. If the decedent had no assets, they may not see the need to file the will with the probate court. However, it is required by law and must be completed even if there are no assets in the estate. It’s possible that an asset may be found somewhere in the future. The will would designate how the asset is to be dispersed.

Small Estate Administration

Many states allow for estates under a certain dollar value to avoid formal probate. They go through informal probate, also often referred to as small estate administration. In this situation, the assets subject to probate are transferred to the beneficiaries by affidavit.

To qualify to avoid probate, the estate cannot have any debts or be over a certain total value. It may also limit this option based on the deceased’s assets that are to be probated. Some states limit it to only those estates with one beneficiary as well.

Transfer on Death Assets

It may not be necessary to file probate if all the assets of the estate transfer to the new owner automatically from the decedent’s estate. Life insurance policies, retirement accounts, bank accounts, and even vehicles in some states can transfer ownership automatically if there was a Payable on Death or Transfer on Death form filled out with the name of the beneficiary.

A few states even allow for real estate to transfer with a quit claim deed, which lists the owners that receive the property at the decedent’s death. Real estate which was owned jointly through joint tenancy with the right of survivorship will also automatically go to the surviving owner without going through probate court.

Limit Creditor Claims

One of the benefits of opening probate is that it limits the time that creditors have to file a claim. When probate is opened, creditors are notified. State probate law limits them to a few months to file the claim. Any claims submitted after the deadline can be rejected.

If the executor does not probate the estate, the creditor can file a claim for up to one year against the estate. The beneficiaries may be worried that they are obligated to pay the estate’s bills if there isn’t enough money. They have no legal obligation to pay creditors out of their own money. However, it does come out of the estate before they can receive their inheritance.

What are the Penalties for Not Filing a Will?

If you fail to file a will within the timeline required by law, you could face serious repercussions with legal action. It’s important to note that failing to file a will isn’t a criminal violation. However, you could face a civil lawsuit by the beneficiaries and be held personally liable if you fail to uphold your duty, which are serious consequences. In addition to legal trouble, the court will have the executor removed and replaced with a new administrator.

You may have to pay for damages in a civil suit filed by the person who was harmed financially. Multiple estate beneficiaries could bring multiple suits against you if you don’t file the will.

There is one instance where failure to file could result in criminal charges. If you didn’t file the will with the intention to inherit the entire estate, it could be viewed as fraud. Perhaps the will stated that a friend or distant family member was to receive the bulk of the estate and you were left out of the will. If you hid the will and filed intestate to inherit property for your own financial gain, you could face criminal charges if the will comes to light.

If you aren’t sure about filing a will or opening probate, you can seek legal advice from a probate lawyer. They will guide you on when and how to file the will and when probate isn’t necessary.