Do you have an executor that is not probating a will?
Or are you worried that they may not?
What if the executor does not probate the will at all?
Is it illegal?
Are there consequences for them?
What happens to the estate?
We’re covering everything when it comes to what if the executor does not probate the will.
Let’s dig in.
Table of Contents
- What If The Executor Does Not Probate The Will?
- What Are The Consequences Of Not Probating A Will?
- What Happens If A Will Is Not Filed?
- What Happens If A Will Is Not Probated?
- What If Executor Does Not Distribute Estate?
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What If The Executor Does Not Probate The Will?
When it comes to what if the executor does not probate the will, there are two main repercussions.
Legal Title To Assets Can Be Clouded
When someone passes away, their property is still in their name.
A will get probated to transfer that property from them to the beneficiaries.
When a will gets probated, the beneficiaries are placed on the title of the property.
The property includes cars, houses, retirement accounts, rentals, investments, and bank accounts.
These properties cannot get passed on to the beneficiaries without the probate process.
This means that the property will remain in the deceased person’s name.
The beneficiaries will not be able to sell, keep insurance, or maintain registration on these properties.
Legal Claims Against Executor
During probate, property gets distributed to the appropriate beneficiaries and creditors.
If an executor does not probate a will, the heirs and creditors will not receive what is legally theirs.
This gives them the right to file a civil lawsuit against the executor for not probating a will.
The executor will be personally liable to repay the heir and creditors for their losses.
Related: Estate Planning Checklist
Consequences Of Not Probating A Will
There are three type of consequences of not probating a will:
Criminal Consequences Of Not Probating A Will
There are no criminal consequences when it comes to what if the executor does not probate the will.
Criminal consequences of not probating a will can only happen if an executor doesn’t probate for their personal gain.
For example, if they are not probating a will to conceal the will for their personal or financial gain.
Litigation Consequences Of Not Probating A Will
But there are litigation consequences of not probating a will.
The beneficiaries can file a lawsuit against the executor for losses.
The executor can get held personally liable for losses that should have been avoided.
These losses from not probating a will include:
- the executor stealing assets that should have gotten distributed
- investment losses
Beneficiaries of the estate can sue the executor for damages.
This is because they have not received assets that they are entitled to.
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.
Related: Executor vs Administrator
Inheritance Consequences Of Not Probating A Will
You will have inheritance consequences of not probating a will.
If you are not probating a will, then you will not be able to transfer the title of any assets that are in the decedent’s name.
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.
What Happens If A Will Is Not Filed
Let’s talk about what happens if a will is not filed.
There is no requirement for a testator to file a will.
The testator is the person who created the will.
Many people don’t file their wills.
They will keep their wills in a “safe place” and let the beneficiaries know where it is.
But a testator can file their will with their local probate court.
The probate court will keep their will on file and safe.
When your probate court holds it, your will is a private document.
Your will is not going to be public information.
If you file your will with the probate courts, you’ll need to leave a list of people who can pick it up after you pass.
If no one picks up your will after you pass, the courts will initiate the probate process on their own.
So, nothing will happen if a will is not filed.
As long as your executor knows where the will is located, you don’t have to file it.
After you pass, the executor will have to file the will themselves.
Related: How To Get A Power Of Attorney
Does A Last Will And Testament Need To Be Filed In Court
Yes, it is the law that a last will and testament needs to get filed in court.
Even if there is no estate to probate, it’s still the law that a last will and testament needs to get filed in court.
The person in possession of the will needs to file it in court within 30 days of the testator’s passing.
This is true even if you’re not the executor.
Since we’re discussing what if the executor does not probate the will, what happens if a will is not probated?
What Happens If A Will Is Not Probated
If a will is not probated, the courts will start probate and distribute assets how they see fit.
The courts can even select a third-party person to act as the executor.
An executor is not required to probate the will.
But if an executor does not file probate, then they cannot transfer the title on any of the property.
Do You Have To Probate A Will
You do not have to probate a will.
But you do have to file a will.
Not probating a will means that you won’t get the inheritance.
Just because you don’t have to probate a will doesn’t mean you shouldn’t.
You should definitely probate a will.
The deceased person usually has debts, assets, a house, and some cars.
If an executor does not probate a will, things can get serious.
Not probating the will means that the property will remain in the deceased’s name.
You can’t sell the property or maintain registration on cars.
To do so, you’d have to have the owner’s signature and consent.
The issue is that the estate will continue to have ongoing expenses.
Things like insurance, taxes, and registration will go unpaid.
But if you don’t care about all that, do you have to probate a will?
If the executor does not probate the will, the beneficiaries can go after them.
You can be personally responsible for that unpaid expenses.
Let’s say the beneficiaries are inheriting a house you didn’t probate, pay property taxes on, or pay insurance.
Let’s also say the house gets vandalized during the period where you didn’t probate the will.
This means that the beneficiaries will not inherit the intended amount.
There is a loss that has occurred because the executor does not probate the will.
The beneficiaries can sue the executor for not probating the will to recoup their losses.
Related: How To Get A Last Will And Testament
How Long Do You Have To Probate A Will After Death
How long you have to probate a will depends on your state.
In most states, you have 90 days to probate a will after death.
This is a requirement by law in most states.
If you do not probate a will within the legal timeframe, creditors and beneficiaries can sue you for losses.
What If Executor Does Not Distribute Estate?
If an executor does not distribute the estate, they can face serious penalties.
When the executor does not distribute the estate, they are held in contempt of court, fined, or given a jail sentence.
A civil lawsuit can get filed against an executor who does not distribute the estate.
This is how creditors and beneficiaries get what is rightfully theirs from the estate.
Do You Have To Go Through Probate If You Don’t Have A Will
You have to go through probate if you don’t have a will.
Even if you don’t have a will, you have to go through probate.
If you don’t have a will, the estate will get distributed per the intestacy laws of your state.
This means either the surviving spouse gets 100% of the estate.
Or it means the estate gets split 50/50 between the surviving children and spouse.
When Does An Estate Have To Be Probated
An estate has to be probated if the deceased person owned assets in their name alone.
An estate does not have to be probated for assets that the deceased person:
- owned jointly with another person (these pass automatically to the survivor)
- named a beneficiary outside of the will (i.e., retirement accounts and life insurance)
- placed in a revocable living trust
Why Do You Have To Probate A Will
You have to probate a will to transfer property out of the deceased person’s name into a beneficiaries name.
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This means that you don’t wrongfully lose assets that are rightfully yours.
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This means you don’t risk litigation from creditors.
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