What happens if a will is not probated?
This article is coving the consequences of not probating a will.
They involve litigation, criminal charges, fines, and even jail time.
To learn what happens if a will is not probated, keep reading.
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.
If you want to create a will for your estate or file a petition to become the administrator of an estate, fill out the form below for a free consultation.
This section is an overview for what happens if a will is not probated.
It covers topics like:
The next section covers exactly what happens if a will is not probated.
Probate a will means that the will gets validated and the estate gets distributed per the will.
Probate gives the executor the authority to gather and distribute the assets in the estate.
Probating a will includes paying off debts and creditors.
And giving the remaining assets to the beneficiaries of the estate.
Wondering why probate a will?
The will outlines how the decedent wanted their estate to get distributed.
If you don’t probate a will, the estate gets distributed per the intestacy laws in that state.
For some states, a spouse dying means that the surviving spouse gets everything.
In other states, the kids get 50% and the surviving spouse gets 50%.
Some spouses want to ensure that their surviving spouse is financially taken care of.
So, they create a will to ensure that their surviving spouse gets 100%.
Does a will have to be probated – it depends.
Some states legally require a will to get probated.
Some states don’t require you to probate a will.
But all states require the estate to go through probate to transfer assets.
Without probate, the estate will not transfer from the decedent’s name to the beneficiaries.
When someone passes away, the property is still in their name.
If a will is not probated, then the property will not get transferred to the beneficiaries.
This is because, when the will is probated, it transfers title from the decedent’s name to the beneficiaries’ names.
“Property” includes cars, houses, retirement accounts, rentals, investments, and bank accounts.
And these properties cannot get passed on to the beneficiaries if the will is not probated.
This means that the property will remain in the decedent’s name.
The beneficiaries will not be able to sell, keep insurance, or maintain registration on these properties.
When the will is probated, property gets distributed to the appropriate beneficiaries and creditors.
But what happens if a will is not probated?
Then the heirs and creditors will not receive what is legally theirs.
When a will is not probated, this gives them the right to file a civil lawsuit against the executor.
The executor will be personally liable to repay the heir and creditors for their losses.
This is because it’s the executor’s responsibility to file probate on the estate.
Next, let’s talk about how long do you have to probate a will?
How long you have to file probate after death depends on the state that you live in.
Most states give you 10-90 days to file probate after death.
You’re only going to be facing criminal charges if a will is not probated for your personal gain.
Let’s say that your mom left 50% of the inheritance to your weird cousin in her will.
But the intestacy laws say that you will get 100% of her estate.
So, you don’t probate the will for your own personal gain.
That will most likely lead to criminal charges.
Related: What An Executor Cannot Do
There are litigation consequences if no probate is filed.
The beneficiaries can file a lawsuit against the executor for losses.
And the executor will get help financially responsible for their heir’s losses.
This is true if these losses could have been avoided.
Losses coming from no probate getting filed includes:
Investment losses include the executor not filing the probate and the market crashing.
Investments include things like a 401k, Roth IRA, rentals, or other investments.
Let’s say the 401k is worth $100,000 when the person passes away.
And the executor takes 2 years to file probate.
But within those two years, the market crashes 50%, leaving the 401k to be worth $50,000.
Since the executor did not file probate in a timely manner, they may be liable for that loss.
Creditors can also file a lawsuit against the executor as a consequence of not probating a will.
Creditors have a claim to the estate to pay back debts.
If an executor is not probating a will, they are denying the creditors what they are owed.
Inheritance losses are also what happens if a will is not probated.
Without probate, you will not be able to transfer the title of assets that are in the decedent’s name.
This is what “clouded title” refers to.
The descendant’s property will have a cloudy title until the estate gets probated.
When you sell property, the person on the title has to sign over the rights.
When a person passes away, probate transfers title from the descendent to the beneficiaries.
If the property is still in the decedent’s name, they are unable to sign.
So, the property remains in limbo until the beneficiaries get on the title.
After probate, the beneficiaries will be on title.
After this, they can sell the property.
Related: How To File A Will
If the executor does not probate the will, they can be held personally liable.
The heirs can sue the executor for not probating the will.
If the executor does not probate the will, the executor may be facing:
There is no legal requirement that an estate has to go through probate if there is a will.
But there is no way for the beneficiaries to obtain ownership of the estate without probate.
(Unless the estate was arranged to avoid probate.)
Related: How To Get Power Of Attorney
You do not always have to go to probate court when someone dies.
If a property was owned jointly, the surviving owner does not need to go to probate court.
The property will automatically go to the survivor in most cases.
Another way to avoid probate is if the property is in a trust.
But let’s say the property was owned solely by the decedent.
Then you have to go to probate court when someone dies.
If no one wants to be the executor of an estate, then the courts will appoint an executor.
Let’s say that the will designated an executor and they don’t want to be the executor.
In that case, the courts will not appoint that person as the executor of the estate.
Instead, they will ask the remaining beneficiaries or a close relative to be the executor.
But what if no one wants to be the executor of an estate from the family?
Then the courts will appoint a 3rd party person to act as the executor of the estate.
This person is referred to as an ‘Administrator.’
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This website is for informational purposes only. It is not legal advice. Consult an attorney if you are seeking legal advice.