What Happens if You Don't Probate 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 making sure 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 a death occurs, the executor should file the will with the probate court in the county where the person lived. This begins the probate process.
But it's not always that simple. Most wills are written years before the will writer dies. The will may be lost or misplaced. An executor may die first or may move away and lose touch with the decedent. An 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 that you would. This doesn't mean you can stick the will in a drawer and forget about it. State probate laws require any person in possession of 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 3 months.
While most state laws require that all wills be filed, they do not require an executor to petition for probate, request that a probate proceeding begin, or prove that the last will and testament is valid.
Certain property could remain in the decedent's estate indefinitely if no one takes responsibility to probate 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. Although failure to file a will with the court is not itself a criminal violation, in most states, the person could be sued by someone who was financially hurt by the failure to file.
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, your father decided to leave his entire estate to a favorite charity and left you nothing. You decide 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 you have been named as an executor in a will, seek legal advice from a probate attorney before deciding 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 cuts short the amount of time a creditor has to make a financial claim against the estate. A creditor must file their claim within four months from the date an executor or personal representative is officially appointed. A creditor's claim may be rejected by the executor if it is filed late.
When probate is not opened, a creditor has one year to file suit against the estate.
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. Rather than 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. That may be the case if the person left nothing of the value or because all items of value were put into a trust, or transferred by a joint title or death deed.
Remember, there is a difference between filing a will and opening probate. Even if probate seems unnecessary, the will must be filed.
It's not unusual to discover property belonging to the deceased years after their death. Some states, like Nevada, allow probate to be opened decades after a person has passed. Having a will on file would allow the newly discovered assets to be distributed.
Transferring Title of Property in Small Estates
Probate is the process that legally transfers ownership of property from the estate of the person who has died to their beneficiaries. If their estate was small, it's likely exempt from the state law that requires someone to open probate. But if no one opens probate, how can you legally transfer something like the title to a car or a share of a family cabin?
File the will and open a simplified version of probate for small estates.
Most states have a streamlined process for transferring the title of a property in small estates. The process is generally referred to as “transfer by affidavit" and may be used to collect the personal property of the deceased. State law sets a maximum fair market value for a small estate that can be transferred 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, only clothes and some furniture. You can use the simplified probate process to transfer the title of the car to you. You will still need to 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 but realize that in some cases it won't be necessary to affect the transfer of property. 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 from there to heirs, without the need for probate because they are no longer part of the decedent's estate.
Still Unsure If You Need to Probate a Will?
If a loved one has died and you are unsure about what you may need to do to inherit property, review the information provided in FindLaw's estates and probate section. If you want to apply to administer the estate through the probate process, contact a local probate attorney who can advise you on your next steps. There are law firms in your area that specialize 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