What If The Executor Does Not Probate The Will

What If The Executor Does Not Probate The Will

The will must be probated after death to ensure that the deceased’s inheritance is distributed to the named heirs. An executor is chosen to supervise the estate’s distribution and obtain the will’s legal recognition.

According to state probate regulations, this is typically a straightforward legal procedure where the court selects the executor after the will and petition to begin probate have been filed in the appropriate court. 

However, if the executor neglects to have the will proved after the person passes away, there may be serious repercussions.

This blog will tackle a question about what if the executor does not probate the will.

How the Probate Process Works

Understanding how the probate procedure functions will help you know what to do if someone doesn’t fulfill their duties. A copy of the decedent’s death certificate, their final will, testament, and a petition for opening probate must all be filed in the probate court within the decedent’s county after their death.

The court will schedule a hearing to confirm the decedent’s last will and testament and name an individual to serve as the case’s representative or executor. The surviving spouse, the probate lawyer, or another person named in the will may serve in this capacity. The executor will receive letters of testamentary, enabling them to act on behalf of the estate, following the court’s consent. In essence, it grants them authority to carry out their responsibilities.

Executor Duties

Notifying the beneficiaries and any identified creditors is one of these estate-related responsibilities. In some states, the executor is required to publish a notice of probate in a neighborhood newspaper. State law determines the period within which each party with a claim may seek payment from the estate.

The estate executor must secure and inventory all the deceased person’s assets, including their personal belongings, real estate, and financial accounts, while they are waiting for claims to be filed. Depending on the deceased person’s assets, this process can take a while. Real estate or other items need to be valued to assess their value.

The executor settles all claims received, files personal taxes on behalf of the estate, and covers any tax liabilities. Along with personal income taxes, this may also apply to estate and property taxes. Until the estate has been divided into designated heirs following the decedent’s desires, they will continue to cover all ongoing costs.

The executor may distribute any remaining estate assets to the heirs once all debts, including unpaid medical bills, funeral costs, and other debts, have been paid in full. This procedure may involve selling the asset and distributing the proceeds to the heirs or transferring the asset’s title to the beneficiary.

Petition to End Probate

As part of the probate process, the executor must provide the probate court with an accounting record. If all responsibilities have been carried out following the will, the court can approve the records and end the probate process.

The probate procedure can be very drawn-out and challenging. But none of that will happen if the executor doesn’t give the will legal standing.

Reasons Not to Probate A Will

Reasons Not to Probate a Will

You might be perplexed why someone would choose not to have a will probated, especially given that they are frequently one among the beneficiaries. That occurs more frequently than you might imagine, and several causes exist. The executor may have passed away or become incapable of carrying out their fiduciary obligation long ago when the will was signed. They would not want to take on this responsibility, or they might have moved away.

The will might disappear or be destroyed at times. There could be a newer will that nobody is aware of. The beneficiaries might assume that the estate is intestate or without a will.

The Executor Must Comply With Filing Requirements

The executor must remember that they were chosen by the deceased even if they don’t want to carry out their duty. If they decide not to complete the duty and keep the will somewhere, they can face the consequences based on the costs to the heirs.

The personal administrator or executor of the estate should submit the will and a copy of the death certificate to the county probate court as per the correct procedure. On a specific day following the decedent’s passing, they must file the will according to state law. By state, the precise timeframe could change. Some stipulate deadlines, like 30 days following the decedent’s passing, and others say it must be filed on time.

The executor is not required to carry out additional tasks, such as submitting a petition for opening probate. If no one steps forward to start the probate process, the estate’s assets may continue to exist in their current state indefinitely.

Opening Probate is Not the Same as Filing a Will

One point of contention for many individuals is that probing a will doesn’t mean probate is open. The decedent might not have felt the need to submit the will to the probate court if they had no assets. Even if there are no assets on the estate, finishing it is necessary because the law mandates it. In the future, someone might discover a resource in some location, and the will would specify the distribution of the assets.

Small Estate Administration

Many states permit estates with a low enough value to skip going through the official probate process. They go through what is known as informal probate, sometimes known as small estate administration. In this instance, an affidavit transfers the probate-eligible assets to the beneficiaries.

To qualify for probate avoidance, the estate shouldn’t have debts or exceed a specific total worth. Depending on the assets that must be probated after the death, it can also restrict this choice. Some states also restrict it to estates with only one recipient.

Transfer of Death Assets

Probate may not be required if all of the estate’s assets are transferred to the new proprietor immediately from the decedent’s estate. Suppose a Payable on Death or Transfer on Death form was filled out with the beneficiary’s name. In that case, several states will immediately transfer ownership of life insurance policies, bank accounts, retirement accounts, and even vehicles.

A quit claim deed, which typically identifies the owners who will acquire the property upon the decedent’s death, is even permitted in some states to transfer real estate. Real estate held jointly in a joint tenancy with the right of survivorship immediately passes onto the surviving owner after the other owner’s death without going through the probate process.

Limit Creditor Claims

Opening probate reduces the period creditors have to submit a claim, which is one of its advantages. When probate is opened, it informs creditors, and they must file the claim within a short period under state probate law. The submissions of late claimants may be denied.

A creditor may make a claim against the estate for up to a year if the executor does not have the estate probated. The beneficiaries might be concerned that they will have to cover the estate’s debts if there isn’t enough money. They are not required by law to use their funds to pay creditors. Before they can get their inheritance, it does, however, fall out of the estate.


How to Ensure a Will is Probated

To ensure a will is probated smoothly, you can follow these steps:

  • Locate the original will: The first step is to find the deceased’s original will. Look for it among their essential documents or safe deposit boxes, or consult their lawyer or estate planning professional who might have a copy.
  • Hire an attorney: While hiring an attorney is not always necessary, having legal guidance can simplify the probate process. An experienced probate attorney can help you navigate the legal requirements and ensure everything is done correctly.
  • File the will with the appropriate court: After locating the original will, file it with the probate court in the county where the deceased resided. It typically involves submitting the necessary paperwork, such as a petition for probate and the death certificate.
  • Notify beneficiaries and interested parties: Inform all the beneficiaries mentioned in the will about the probate process. Additionally, you may need to publish a notice in a local newspaper to notify any other potential creditors or interested parties.
  • Gather and value the assets: Identify and collect all the assets the deceased owns, including bank accounts, properties, investments, and personal belongings. Have these assets professionally appraised, if required, to determine their value.

It’s important to note that the probate process can vary depending on the jurisdiction, and the complexity of the estate can also impact the timeline and requirements. Consulting with a probate attorney can provide specific guidance based on location and circumstances.

What If The Executor Does Not Probate The Will?

If the executor of a will does not probate it, it can create various complications and delays in estate administration. Probate is the legal process by which a will is validated, and the executor’s role is to oversee this process and ensure that the deceased person’s assets are distributed according to their wishes.

When an executor fails to probate a will, several potential scenarios can arise:

  1. Delayed distribution: Probate establishes the legal validity of a will and provides the executor with the authority to administer the estate. With probate, the assets can be distributed to the beneficiaries, resulting in delays.
  2. Legal challenges: Probate allows interested parties to contest the will’s validity. If the executor doesn’t initiate the probate process, it may prevent interested parties from challenging the will, potentially leading to disputes.
  3. Potential liability: The executor has a fiduciary duty to act in the estate’s and its beneficiaries’ best interests. By not probating the will, the executor may fail in their duty and potentially face legal consequences or personal liability for any losses the estate or beneficiaries suffered.
  4. Loss of assets: If the executor fails to probate the will, the deceased person’s assets may remain unprotected and at risk. That could lead to financial losses, such as missed opportunities to sell or transfer property or investments.
  5. Executor replacement: In some cases, if the executor is unwilling or unable to fulfill their duties, interested parties may petition the court to remove him and replace him with another executor. That can further delay the probate process and create additional expenses and complications.

If you find yourself in a situation where the executor is not probating the will, it is essential to seek legal advice promptly. An attorney specializing in probate and estate administration can guide you on the necessary steps, such as petitioning the court to compel the executor to fulfill their duties or remove and replace them if necessary.

It’s important to note that laws and procedures regarding wills and probate can vary across jurisdictions. Consulting with a legal professional familiar with the relevant laws in your area will provide you with the most accurate and tailored advice for your specific situation.

Can Executory Powers Be Relinquished?

Other circumstances could prevent an executor from validating a will. These include the executor’s untimely death, an unfortunate event that befalls them, or an urgent situation that needs to be handled. This action could have a long-term, considerable influence on a probate court case. A new legal representative may be one of the possibilities available to the family of the dead.

What occurs if the executor does not have to file the will and begin the probate procedure? They must give the other party the original, signed will. This new party must then present the will to the competent court. Regarding a change in executors, a legal notice is required. The rules for submitting an original signed will, in particular, vary typically from state to state. According to an experienced attorney, this can take between 30 days and three months, depending on the state. For instance, In California, a will has a 30-day deadline by which it must be signed. That holds regardless of who files the will—the executive or another emissary.

The probate court within an estate’s area must appoint someone to take on the function of the executor by issuing what is known as “letters testamentary” if the executor of the estate dies or fails to fulfill their executor role due to another reason. The court issues this legal document giving the alternate executor the go-ahead to manage the decedent’s estate.

Remember that the estate may need to hire and pay for the services of a professional lawyer if an executor is not accessible among the deceased’s family or friends. A probate attorney will be beneficial if a family member’s representative is unavailable.


What to Do if an Executor Refuses to Probate a Will?

It can be complex and challenging if an executor refuses to probate a will. However, there are steps you can take to address the issue. Here’s what you should consider doing if you find yourself in this situation:

  • Understand the reasons behind the executor’s refusal.
  • Review the will and relevant documents for legitimacy.
  • Seek legal advice from a probate attorney.
  • Communicate with the executor to resolve conflicts.
  • If communication fails, file a petition with the court.
  • Gather evidence and documentation supporting the will’s validity.
  • Attend court hearings and present your case.
  • Consider seeking the removal of the executor if necessary.

What are the Penalties for Not Filing a Will?

If you don’t submit a will by the deadline specified by law, you risk facing substantial legal ramifications. It’s crucial to understand that not filing a will is a crime. However, if you breach your responsibility, you risk being held personally accountable and subject to a civil lawsuit from the beneficiaries. The court will order the executor to be replaced by a new administrator, in addition to legal issues.

You can be required to pay damages in a civil lawsuit brought by the individual whose finances were hurt. If you don’t file the will, various estate beneficiaries may initiate many lawsuits against you.

In one situation, failure to file might lead to criminal charges. It can be considered fraud if you didn’t submit the will intending to inherit the entire inheritance. You may have been left out of the will because it specified that a friend or distant relative would receive most of the estate. If the will is discovered, you may be charged with a crime if you concealed the will and declared intestate to inherit property for your personal financial benefit.

When Its Best To File Probate


When It’s Best to File Probate

Although not always required, probate is frequently necessary to settle a person’s estate after they pass away. Even if the process is not compulsory, it is frequently preferable to file a will and a probate petition to eliminate any potential problems. By doing this, you can prevent delays from making the likely inevitable probate process last longer. If you don’t file for probate when you should, your inheritance and assets may not be distributed fairly.


Here are some frequently asked questions.

Q: Does a last will and testament need to be filed in court?

A last will and testament must typically be submitted to the court. Regardless of whether the estate will go through probate, it is true. Probate might not be required if the deceased didn’t have assets or had given all of them to a living trust. In that situation, you would still submit the will and let the court know there were no assets to probate. 

Additionally, if you serve as the executor of a will that has been executed, the law generally requires you to file the will in the relevant county court. In most cases, if you aren’t the executor, you must give the will to the executor, who then brings it to court. The filing deadline varies depending on the state, although it usually falls between 30 days and three months. 

You can seek the court to order the owner of the will to file it and start the probate case if you don’t have a will but know who does. 

Q: How long after death do you have to file probate?

The window for starting probate can last up to four years, depending on the state, despite the short time frame for filing the will.

Q: What is the function of probate?

By settling the deceased’s estate through probate, creditors are paid off, and assets are distributed. The deceased may continue to hold property and accrue expenses that will go unpaid if the estate isn’t handled and closed off. 

Q: What happens in probate court?

An administrator or executor spends most of their time outside the courthouse working on the probate. Probate proceedings can be ordinary and tiresome in front of a judge. For instance, the judge may issue an Order for Probate, name the administrator or executor as the estate’s representative, and then ask for a bond from the personal representative during the initial hearing. The beneficiaries are shielded from careless behavior by the bond.

If all goes well, the personal representative will finish the estate’s unfinished business several months after the next court appearance. The judge will review the outstanding issues and ensure that taxes have been filed and creditors have been paid. The judge may issue an order allowing the executor to allocate the assets to their heirs once all issues have been resolved. 

Q: Can an estate be settled without probate?

Yes, a will can be resolved without going through probate. Most states let smaller estates bypass probate and transfer specific assets directly to heirs and family members. For instance, estates with less than $166,250 in California can be exempt from the need for probate. 

The only assets that count toward this cap are those subject to probate. For instance, the estate of a wealthy uncle who put all of his possessions into a living trust might not need to go through probate. You might not need to go through probate if your mother kept all her money in accounts with you identified as the beneficiary. Those assets would only be transferred immediately to you if they went through probate. 

Get Professional Probate Help

If you are trying to decide whether to file a will or open probate, The Giuliani Law Firm is here for you. Our probate attorney has the knowledge and will advise you on how and when to file the will and if it’s unnecessary to go through probate.

Call us at (702) 388-9800 to schedule an appointment or consultation.


For more information on how https://probateattorneyvegas.com/ can help you on your Probate, please contact us at (702) 388-9800, or visit us here:

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