What Happens if You Do Not Probate a Will?
What is Probate?
Probate is the legitimate method that an estate becomes settled under the court’s supervision. An individual, normally a living spouse or an adult child, is designated by the court if a will does not exist or chosen by the will of the deceased individual. Once chosen, the individual, termed an executor or personal representative, has legal power to collect and appraise the assets possessed by the estate, to pay bills and taxes, and, eventually, to issue the assets to the heirs or beneficiaries.
The intent of probate is to stop fraud following somebody’s death. Suppose everybody is appropriating the castle following the lord’s death. It is a method of freezing the estate until a judge decides that the will is legal, all the pertinent individuals have been informed, all the property in the estate has been recognized and assessed, the creditors have been paid, and all the taxes have been paid. When all of that has been finished, the court gives out an order issuing the property and the estate is closed. In the state of Florida, under the Uniform Probate Code, there are three types of probate proceedings: informal, unsupervised, and supervised formal. You may want to contact a probate lawyer in Florida for your specific case.
How Does the Executor Fit in?
When a person dies with a will, he or she usually names an individual to act as his or her executor. The executor is accountable for ensuring that the debts of the deceased individual, or decedent, are compensated, and any residual money or property is issued according to his or her wishes. It is usual for wills to be created years prior to a person’s death. When death happens, the executor ought to file the will in court to start the probate procedure. However, it is not always easy. An executor sometimes dies first or can choose that he or she no longer wants to be an executor. So, now what.
A person is not required to act as a will’s executor, although he or she promised the deceased person that he or she would. This does not mean that the individual can put the will of the decedent in a drawer and ignore it. Almost all states demand that any individual possessing an original endorsed will to put it at the court of the county where the decedent lived. Filing deadlines differ from state to state and extend from thirty days to three months. If there is no will, then this is referred to as dying intestate.
Consequences to the Executor or Personal Representative
If a person fails to file a will by the required state deadline, there can be severe penalties. Even though failure to file alone is not an illegal disobedience, in many states, the individual is subjected to a lawsuit by somebody who was economically harmed by the failure to file. For instance, Washington state law states that anybody who intentionally failed to file a will with the court is accountable to any wronged party from the damages being caused by the infringement.
Criminal liability could happen if the failure to file a will is combined with a plan to hide the will’s existence for economical gain. For instance, an individual’s father chose to bequeath his whole estate to a preferred charity and left the person nothing. The individual decides not to file his or her father’s will. The laws of intestate succession permit the person to receive his or her father’s whole estate. In this situation, a failure to file the will would possibly subject the individual to criminal liability.
Claims of the Creditor and Insolvent Estates
When individuals pass away, it is usual to have outstanding bills. By beginning probate, the quantity of time that a creditor must claim against the estate is decreased. A creditor must file his or her claim within four months from the date an executor or personal representative is legitimately assigned. If the filing is late, the executor might reject this claim. When probate is not started, a creditor has a year to file a lawsuit against the estate.
It is usual for a will not to get file when the estate of the deceased person is insolvent. This means that the amount of bills exceeds that of money. Generally, relatives and friends are not legally obligated to do anything to pay the debts, converse with creditors, or start a probate. Thus, the easiest solution is to file the will abandon the problem by not beginning probate.
To Transfer Title to Property
Suppose a friend died bequeathing a cherished classic car in his or her will. The person’s friends had few other assets. Because it is a small estate, it is probably excluded from probate. The individual must remember that probate is a process that transfers a property’s legal title from the deceased person’s estate to his or her beneficiaries. The person is fortunate that many states have a restructured process for signing over title in small estates. The procedure is usually implied as transfer by affidavit and might be utilized to collect the deceased person’s personal property without probate. State law will establish the highest fair market value of the deceased person’s whole estate that can pass in this way. The individual will still probably have to present the will to indicate his or her legal right to receive the car.
File Wills That Do Not Require Probate
Probate is not always required. Individuals often do not try to file a will if there is no clear requirement to start probate because the individual left nothing valuable or every valuable item was placed in a trust, a joint account, or some other type intended to avoid probate.
The person must remember that filling a will differs from beginning probate. Even probate appears unrequired, the will must be filed. It is not that common to find property that belonged to the deceased person years after his or her death. A few states, like Nevada, permit probate to be started decades after an individual has died. In such a situation, the will would permit the recently found assets to be issued.