It may be hard to understand the reasoning but there are times when the executor of an estate may not probate the will. While this may not seem like a big deal, especially if the estate is small, it could result in some major problems. However, it is important to note that it’s not illegal to fail to file a petition for probate. Even though the executor may not get in legal trouble for failing to file probate, they could end up with other issues.
Requirement to File a Will
Filing probate isn’t the same as filing a will. When someone dies, their will must be filed with the court if they had one. Even if they had no assets for heirs to inherit, the will must be filed. If the executor of the estate fails to file a will once the person has died, they could get into trouble legally. They may be held liable in civil court and in criminal court. Parties who would have benefited from the decedent’s estate may file a lawsuit for damages sustained because the will wasn’t filed.
Most states require a will to be filed within 30 days of the person’s death. To find out what your state requires, you can usually go online to the county website where the person lived or call the probate court to find out specific requirements.
Even if a person doesn’t want to serve as executor, they must file the will if it’s in their possession. They can then ask the court to appoint someone else to the task of executor and relieve them of their duties. If there is no will or it can’t be found, the person must make every effort to locate it and show the court you made the attempt. If the will is old and the beneficiaries have passed away or can’t be located, that will still must be filed if a more recent one hasn’t been found.
Legal Title to Assets Clouded
When a person passes away and leaves their assets to a beneficiary, the title of those assets must be transferred to the heir. The exception to this rule is if the beneficiary was named as payable on death. If that’s not the case, the estate will need to go through probate, so the court can provide proper documentation which will allow the executor to transfer ownership of the assets to the heirs.
Even though the will may state that an asset should go to an heir, the court must approve the will and allow for any disputes. Title companies and other titling agencies won’t accept the will without the proper paperwork from the court.
Heirs Could Have Legal Claims Against You by the State
If an estate doesn’t go through probate and it is a necessary process to transfer ownership of assets, the heirs could sue the executor for failing to do their job. The heirs may not receive what they are entitled to. They may be legally allowed to file a lawsuit to get what they are owed.
Problems with an Existing Will Could Remain Unresolved
There may be issues with an existing will, which can only be resolved legally through the probate court. For instance, someone may believe the decedent created their will under duress. Perhaps they weren’t of sound mind, and the heirs choose to challenge the will’s validity.
When someone wants to contest a will, they will need the court to decide if the will stands or if there is evidence to show that it shouldn’t be binding.
Penalties for the Personal Representative
While you may not have to face legal penalties for not filing, a personal representative may be liable for an estate that hasn’t gone through probate. They could face a lawsuit by the heirs or creditors who stood to benefit from the estate. The heirs may sue for damages because of not being given the assets to which they were entitled.
In some cases, a personal representative or executor could face criminal charges. In these situations, the prosecutor would claim the executor intended to hide the will or not take the estate through probate because it would provide financial gain for them.
A prime example is if someone decided to leave their estate to a family friend. The adult child was the executor of the estate and failed to file a will or go through probate. The estate would naturally fall to them because of state law. If the will is discovered, the executor could face criminal action for fraudulent activity.
Transferring Title to Property
Probate is necessary to transfer the title to property if the deceased person didn’t have a beneficiary set up. There are a few ways they could transfer property without going through probate. The owner of the estate could set up a living trust and put all their assets in the trust. When they die, everything passes to the beneficiary of the trust with no need to go through probate.
Another option is to make the assets payable on death to a beneficiary. With life insurance policies, bank accounts, retirement accounts and other assets, you just fill out a form to say who you want the beneficiary to be. With real estate, you can file a quick claim deed that lists the person to receive the property after you die.
If the decedent has done none of these things or has property that can’t be transferred until death, they will need a will. When the estate goes through probate, the court provides documentation that allows title companies to transfer the title of the asset to the new owner.
Filing a Will that Does Not Require Probate
If all the assets were placed in a trust, there would be no obvious reason to open probate. In many cases, the executor may not file the will. However, it’s still important to take this step even if there seems to be no assets to distribute.
There is always the possibility that in the future a new asset may be discovered. If the asset is found years from the person’s death with no will filed, it can be difficult to distribute them as the decedent would have wished. If the will was filed, the new assets would be distributed according to the terms of the will. The assets would go through probate, which can be opened many years after the person passes away. The filed will would still direct how the assets were to be handled.
Probate litigation occurs when a person has an issue with the will or the way the process is going. An heir may contest the will because they don’t believe it’s valid. They may try to prove that the person wasn’t mentally sound when they made up the will, especially if there had been an earlier will. If the person had been living with someone, the survivor may try to prove common law marriage to give them rights to the estate.
The heirs may also file a lawsuit against the executor if they believe they aren’t doing their job correctly. Perhaps the executor is dragging out the process to prevent the heirs from getting their inheritance or just not organized, so the process is taking longer than it should.
Heirs may also have a problem with how the executor is handling the details of the estate. They must meet several obligations. If they fail to do so, they may be held responsible. For example, they must sell assets at fair market value. They must protect all assets from damage or theft as much as possible. They may be required to explain any actions they took on behalf of the estate. The process starts with finding all the assets, which may be more difficult than you would expect if property is located in other states or jointly owned by more than one person. Securing the property can be a challenge for property in other states, but it is still the responsibility of the executor to do so.
It is critical that an executor of the estate open probate. Even small estates will go through a summary probate or small estate administration. By following this legal process, the executor protects themselves from liability. If they don’t want to serve as the executor, they can let the court know and another person will be appointed. Not filing probate opens them up to liability which could have disastrous consequences.
It is critical that executors fill their duty by opening and managing the estate to which they are appointed. If they are unsure of what steps to take or need assistance, they can work with an experienced probate attorney to help them through the process.