What Happens if You Don't Probate a Will?
After death, the executor should file the will with the probate court in the county where the person lived. This begins the probate process. But it can be more complicated. Most wills are written years before the will testator dies. Any number of circumstances can cause complications with probating a will.
During the estate planning process, a person is typically named to serve as the executor of a will. The executor is responsible for ensuring that after a person dies (the decedent), their debts are paid, and any remaining estate assets are distributed to loved ones according to the terms of the will.
After death, the executor should file the will with the probate court in the county where the person lived. This begins the probate process.
But it can be more complicated. Most wills are written years before the will testator dies. Any number of circumstances can cause complications with probating a will. These can include:
- A lost or misplaced will
- The death of the named executor
- The executor loses contact with the testator
- The named executor may decide they no longer want the job
So, what happens if you don't probate a will?
State Probate Will Filing Requirements
You aren't required to serve as the executor of a will. Even if you made a promise to the deceased person, you have no legal obligation to serve. This doesn't mean you can stick the will in a drawer and forget about it.
State probate laws require any person possessing an original signed will to deposit it at the court of the county where the deceased resided, along with a death certificate. Filing deadlines vary by state, ranging from 30 days to three months.
Most state laws require that all wills be filed. They do not, however, require an executor to file a petition for probate or prove the validity of the last will and testament.
Property could remain in the decedent's estate indefinitely if no one probates the will.
Penalties for Failing to File a Will
Failing to file a will within the time required by the state can have serious consequences. An executor (or personal representative) has a fiduciary duty to the heirs of an estate.
Failing to file a will with the court is not a criminal violation in most states. But the person could be sued by someone harmed by the inaction.
For example, in Washington, the law says that anyone who "willfully failed to file a will with the court" is liable to any injured party for the damages resulting from the violation.
If the failure to file a will is coupled with an intent to conceal the existence of the will for financial gain, that could be a criminal offense.
For example, suppose your father decided to leave his entire estate to a favorite charity. He left you nothing. You choose not to file his will.
The laws of intestate succession allow you to inherit your father's entire estate. In this instance, a failure to file the will would expose you to criminal liability.
If a will names you as the executor, seek legal advice. A probate attorney can guide you in your decision not to file a will with the probate court.
Don't Let Creditor Claims Prevent You From Filing a Will
When people die, it's common to leave unpaid bills. Opening probate shortens the time a creditor has to make a financial claim against the estate.
A creditor must file a claim within four months of the personal representative's appointment. The executor may reject a creditor's claim when filed late. A creditor has one year to file suit against the estate when no probate is opened.
Sometimes, family members don't file the will with the court because the deceased's estate is insolvent. There are more bills than money. Family members may be worried that they will have to pay the outstanding debts.
That is not the case. Relatives and friends have no legal obligation to pay the decedent's debts, communicate with their creditors, or open a probate proceeding. Don't risk a potential penalty for failing to file the will. The simplest solution is to file the will with the probate court and then walk away without opening a probate case.
Filing a Will Is Not the Same as Opening Probate
People frequently don't bother to file a will if there is no apparent need to open probate. Some estates manage to avoid probate. That may be the case if the person left nothing of value. Probate may be unnecessary when all items of value are put into a revocable living trust.
The same is true if assets pass through the use of beneficiary designations. When assets have joint ownership, the joint owner becomes the sole owner at the decedent's death. Property can also transfer outside of probate by a death deed.
Remember, there is a difference between filing a will and opening probate. Even if probate seems unnecessary, the will must be filed.
Discovering property belonging to the deceased years after their death is not unusual. Some states, like Nevada, allow probate to be opened decades after a person has passed. A will on file would allow for the distribution of newly discovered assets.
Transferring Title of Property in Small Estates
Probate legally transfers ownership of property from the estate to beneficiaries. If their estate was small, it's likely exempt from the state law that requires someone to open probate.
If no one opens probate, how can you legally transfer something like the title to a car or a share of a family cabin?
Most states have a streamlined process for transferring the title of a property in small estates. The process may be called "transfer by affidavit." An individual may collect the deceased's personal property. State law sets a maximum fair market value for a small estate that can transfer in this manner.
Imagine if a friend passed away, leaving you her prized classic car in her will. Your friend had few other assets besides her car. She just owned clothes and furniture. You can use the simplified probate process to transfer the car's title to you. You must still produce the will to show your legal right to inherit the car.
Probate Isn't Always Necessary
If there is a will, file it with the court for the reasons given above. However, realize that it won't be necessary to affect the property transfer in some cases. Some properties transfer outside of the probate process.
- The decedent may have owned real estate in joint tenancy with the right of survivorship for their co-owner. The property transfers automatically to the co-owner. (Joint tenants in common will need to be transferred by probate.)
- In community property states, shared real property will transfer to a spouse.
- Some assets transfer automatically to a named beneficiary, like a payable on death (POD) bank account, IRAs, or a life insurance policy.
- Some assets are transfer on death (TOD) accounts, like retirement accounts. These transfer ownership of the account to another person.
- Assets held in a trust remain in the trust and can pass to heirs without probate because they are no longer part of the decedent's estate.
Still Unsure If You Need to Probate a Will?
A loved one recently died. What do you do to inherit property? FindLaw's estates and probate section can help. Contact a local probate attorney if you want to apply to administer the estate through the probate process. They can advise you on your next steps. There are law firms in your area specializing in probate.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex probate situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations