3 Risky Consequences Of Not Probating A Will You’ll Want To Avoid

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Consequences Of Not Probating A Will - What If The Executor Does Not Probate The Will - What Happens If You Don't Have A Will

You’re wondering what the consequences of not probating a will are. 

Maybe you’re a beneficiary worried that the executor won’t probate the will. 

Or you’re the executor considering not probating the will. 

Either way, this article will cover:

  • the consequences of not probating a will
  • what happens to the executor if they do not probate the will
  • what happens to the estate if the will is not probated
  • what you need to probate the will
  • how to probate a will

Let’s dig in.

Table of Contents

When the courts appoint an administrator to an estate, they can choose anyone. This includes creditors or third-party companies. Meaning you and your family lose all control over the estate.

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Consequences Of Not Probating A Will - Do You Have To Go Through Probate If You Have A Will - Does A Will Have To Be Probated

Consequences Of Not Probating A Will

There are five main consequences of not probating a will. 

The consequences for not probating a will are:

  • the person who doesn’t file the will can be personally liable
  • legal titles get clouded and the property cannot get sold
  • heirs can have legal claims against you
  • creditors can come after you for their losses  
  • problems with the will surface 
     

The ‘personal representative‘ is the executor of the estate. 

The executor has a 1-3 month time limit for probating a will. 

The time limit for probating a will depends on the state probate will occur in.  

Related: How Long Do You Have To Probate A Will?

Personal LIability

The executor has personal liability as consequences of not probating a will. 

Worst case scenario, the consequences of not probating a will can lead to prison time. 

But most of the time, the consequences of not probating a will are a personal liability. 

This means that the executor has to pay the other heirs for their losses. 

This could be theft, vandalism of a home left vacant, loss of investments, etc. 

The beneficiaries have the right to sue an executor to recoup their losses. 

Legal Title Is Clouded

One of the big consequences of not probating a will is that the title becomes clouded. 

Probating a will is the only legal way to transfer assets when someone dies. 

The title becomes clouded when someone dies and the title remains in their name. 

This means that the property cannot get sold without probating a will. 

Probating a will is the only way to transfer the title from the descendent to the beneficiaries. 

Let’s say that your parents passed away and left you a house. 

You cannot sell that house until you probate the will

This will transfer the title into your name. 

And that gives you the ownership and authority to sell the property. 

Related: What An Executor Cannot Do

Heirs Have Legal Claims

Another one of the consequences of not probating a will is that heirs have legal claims against you. 

Let’s say that the will has assets and property going to the beneficiaries.

The consequence of not probating that will is that the beneficiaries can sue you. 

They can sue you for not getting their property AND for losses they’ve incurred. 

But the losses and damages must have happened BECAUSE of not probating a will.

Creditors Have Legal Claims

Let’s say that the person passes away and the will is not probated. 

The estate will still continue to accumulate debt, taxes, and interest. 

Creditors have 1 year to file a lawsuit against the estate to reclaim their debts. 

Related: Difference Between Executor and Trustee

Problems With A Will

Problems with an existing will are another one of the consequences of not probating a will. 

Let’s say that one of the beneficiaries claims that the will is invalid. 

When someone contests a will, the judge will consider the evidence and make sure the will is valid. 

Validating a will becomes harder as more time passes from the original creation. 

This is because witnesses and evidence become harder to find as time passes. 

If the will cannot get validated, the estate gets split up per intestate laws. 

Related: Estate Planning Checklist

Do You Have To Go Through Probate If You Have A Will?

You do not have to go through probate if you have a will. 

But if you do not go through probate, the property remains in the descendant’s name. 

The beneficiaries cannot gain legal ownership of the property without probating a will. 

Does A Will Have To Be Probated?

A will does not have to be probated if:

  • assets are held jointly with “rights of survivorship”
  • assets are “payable on death,” such as retirement accounts
  • assets are in a revocable living trust

Does An Estate Have To Go Through Probate If There Is A Will

An estate does not have to go through probate if there is a will. 

But estates that do not go through probate will not transfer to the beneficiaries. 

(Unless the estate is set up to NOT go through probate as described above.)

This means that the heirs do not get the property that they are supposed to inherit. 

And the executor will be legally liable for any losses or damages to creditors or beneficiaries. 

Related: Transferring Assets With A Quit Claim Deed

What If The Executor Does Not Probate The Will - What Happens If A Will Is Not Probated - What Happens If You Don't Have A Will

What If The Executor Does Not Probate The Will

So, what if the executor does not probate the will

If the executor does not probate the will, then the assets will not get transferred to the heirs. 

Probate transfers property from the decedent’s name to the beneficiaries. 

If the executor does not probate the will, the property stays in the decedent’s name. 

When this happens, the beneficiaries cannot sell or register the property. 

But the estate will continue to accrue property taxes, interest, and debts. 

And if the executor does not probate the will, they can become liable for these. 

The executor can get sued by beneficiaries and creditors for these losses and expenses. 

In extreme cases, if the executor does not probate the will, they can face jail time.

Going to jail for not probating the will is rare, though. 

But the beneficiaries can press criminal charges if an executor does not probate a will. 

This is the case when the executor doesn’t probate the will for personal gain. 

Related: How To Get A Power Of Attorney

What Happens If A Will Is Not Probated

We talked about what if the executor does not probate the will. 

But, as an overview, what happens if the will is not probated? 

This is what happens if a will is not probated:

  • The deceased’s assets will not be legally transferred to heirs.
  • The estate may continue to incur expenses for those assets (property taxes and insurance).
  • Creditors can continue to pursue payment for the deceased’s debts.
  • The executor or anyone in possession of the signed will could be held personally liable for excess expenses incurred by the estate or its heirs.
  • The executor or anyone in possession of the signed will could be criminally prosecuted if he or she didn’t file the will for personal gain. 
      

But this is for probate assets only. 

Certain property can get transferred even if a will is not probated. 

This includes things that are payable upon death, such as:

  • retirement accounts
  • bank accounts in joint tenancy
  • life insurance
  • property held in a trust
  • real property held in joint tenancy

Even if a will is not probated, these assets will transfer to the beneficiaries at the time of death. 

Most companies will require a certificate of death to transfer these assets. 

What Happens If You Don't Have A Will

If you don’t have a will when you die, the probate court will refer to local intestate laws. 

These intestate laws determine who gets your property. 

If you don’t have a will, you cannot:

  • name an executor to manage your estate
  • name guardians for your children (courts can place them in foster care)
  • name caretakers for your pets
  • give instructions for debts (if you gave a close friend a loan, they will still owe that money)
  • give your money to charity and non-profits
  • give heirlooms or gifts to certain people
     

If you don’t have a will when you die, the probate court will refer to local intestate laws. 

These intestate laws determine who gets your property. 

If you don’t have a will, your property will either:

  • go 100% to your surviving spouse
  • go 50% to your spouse and 50% to the children 
     

You’ll need a will if you want to give your spouse 100% of your property. 

This is true if you live in a state where the children would get half of your property. 

For example, my grandmother wants my grandpa to get 100% of her property. 

This will allow him to continue to live off her property for the rest of his life. 

She doesn’t want his living expenses to go unpaid by giving half of her assets to the kids. 

If you don’t have a will, you don’t have a say in who gets what from your estate. 

Probating A Will - Does An Estate Have To Go Through Probate If There Is A Will - Why Probate A Will - Does A Will Have To Go Through Probate

Probating A Will

Probating a will is more than just distributing the estate

The executor has to perform numerous tasks and document everything when probating a will. 

When probating a will, the executor has to:

  • get the death certificate
  • file the will and death certificate
  • petition the court to become the executor
  • identify the assets within the estate 
  • pay the debts of the estate and the taxes
  • distribute the estate to the beneficiaries
  • close the estate

Why Probate A Will

Wondering why probate a will? 

Transferring assets from the descendant’s name into the beneficiaries’ names is why you should probate a will

This allows the beneficiaries to get their appropriate share of the inheritance that’s left to them. 

If you don’t probate a will, the titled property remains in the decedent’s name. 

And the beneficiaries cannot sell that property or register it. 

That’s one of the biggest consequences of not probating a will.

But what about personal items like family heirlooms? 

Why probate a will for the non-title property? 

You don’t have to, technically. 

But not probating a will for non-title property can backfire. 

This is true if other beneficiaries feel like they deserved that property or a portion of it. 

Beneficiaries have the right to sue the executor if the will is not probated. 

Does A Will Have To Go Through Probate

A will does not have to go through probate if the property is not subject to probate. 

Property that does not have to go through probate is:

  • property held in joint names
  • property with named beneficiaries
  • property in revocable living trusts

What If The Executor Does Not Follow The Will

But what if the executor does not follow the will’s instructions? 

It’s the executor’s fiduciary duty to follow the will’s instructions. 

If the executor does not follow the will, you can:

  • petition the courts to replace the executor
  • file a lawsuit against the executor for not following the will 

If you are requesting to remove the executor, you must have evidence for ANY of the following:

  • defrauding of a beneficiary 
  • stealing from the estate
  • intentionally hiding assets
  • refusing to follow the terms of the will
  • failing to maintain records
How To Probate A Will - What If The Executor Does Not Follow The Will - Consequences Of Not Probating A Will

How To Probate A Will

Now that we know the consequences of not probating a will, let’s talk about how to probate a will. 

  1. File a petition to start probate.
  2. Notify the beneficiaries of the probate process.
  3. Take inventory of the assets for probate.
  4. Collect money owed to the estate. 
  5. Pay off debts that the estate owes. 
  6. Distribute the remaining assets to the beneficiaries. 
  7. Close the estate. 

Protect Your Inheritance

If you suspect that the executor won’t probate the will, fill out the form below. 

We can get your inheritance for you. 

This way, you don’t lose tens of thousands of dollars

And you don’t lose meaningful items from your loved ones. 

You end up getting everything you deserved from your inheritance. 

Talk soon.

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