If you’ve been appointed as executor of someone’s estate, you’re tasked with filing the will and opening a probate case when that individual passes away. But what happens if you do not probate a will? Perhaps you’ve changed your mind about serving as executor or you simply have other, more pressing priorities to manage. You might wonder if you can skip a lengthy probate process and settle the deceased’s estate on your own. Unfortunately, the answer is usually No.
If the deceased had any assets or debts, the consequences of not probating a will can be fairly serious, both for the estate and for you personally. Probate is the only legal way to transfer the assets of someone who has died. Without probate, titled assets like homes and cars remain in the deceased’s name indefinitely. You won’t be able to sell them or keep registrations current because you won’t have access to the individual’s signature and consent. The estate will likely have ongoing expenses as a result, including property taxes, insurance premiums, and car registrations. Those bills will go unpaid unless you want to fund them personally.
Finally, if you know you’re supposed to probate the will and you fail to do it, you can be held personally liable for resulting expenses incurred by the estate and any financial impacts to the deceased’s heirs. There could even be jail time involved; it’s generally a crime to withhold a will from the courts for your own financial gain.
What Does Probate for a Will Mean?
A will is a legal document that lets the court know who you want to have your belongings after you die. When a will is probated, it means that the Court has determined (proved) that the will satisfies the requirements to be considered a valid will in the state and that it is, or can reasonably be concluded to be, the last will of the decedent. It is important to note that a will is not necessary for an estate to go through probate.
Until this step is taken, the decedent’s assets cannot be distributed to the heirs.
Responsibilities of the Executor
The executor has a fiduciary responsibility to handle the estate for the benefit of the heirs. The first duty is to take control of the assets that are included in the estate and manage them properly. This includes safeguarding the assets and may include divesting the estate of risky investments. The executor must take reasonable actions to prevent theft and ensure that assets are properly insured. Monies owed to the estate must be collected. In short, the executor must secure, manage, and protect the estate’s assets.
What if the Executor does not Probate the Will
If the executor does not probate the will or refuses to do any other of the required duties, you should speak to a probate attorney immediately. The longer the misconduct continues, the more the estate will be damaged, and the harder it will be to recover funds. Other factors if the Executor fails to probate the will may include:
- The deceased’s assets will not be legally transferred to heirs.
- The estate may continue to incur expenses for those assets, such as property taxes and insurance premiums.
- Creditors can continue to pursue payment for the deceased’s debts.
- The executor or anyone in possession of the signed 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.
What happens if the Executor of the Estate is not performing duties
If the executor of the estate is not performing their required duties, a beneficiary’s attorney can take legal action. Executors can be removed and sued for financial harm they caused. Your attorney may take the following steps:
- Petition the probate court to compel the executor to properly perform their duties.
- Petition the probate court requesting the executor’s removal and stating the reasons why. The probate judge will examine the situation and determine whether to remove the executor and appoint a new one.
- File a civil lawsuit for money damages to recover the financial losses the estate suffered because of the breach of duty or misconduct.
- Look into criminal charges. Executors who violate their duties often also violate the law. They may be charged with crimes such as stealing from the estate, fraud, and embezzlement. If this is the case, your attorney can bring the misconduct to the attention of the local prosecutor who will decide whether to pursue criminal charges.
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FAQs
Can you settle an estate without Probate?
If you are the administrator of an intestate estate (an estate without a will) or an executor of the estate (an estate with a will), you can settle the estate yourself by following the probate code.
It’s a will necessary for an estate to go through probate?
Absolutely No, a will is definitely not necessary for an estate to go through Probate
What happens if you dont probate a will?
If you don’t probate a will within four years after someone passes away, that will usually become invalid. You lose your opportunity to have the will probated, which can lead to really harsh consequences.