When someone passes away, you (as the executor or admin of the estate) aren’t required by law to file probate papers. Nevertheless, if you don’t file probate papers, you won’t be legally able to transfer the title of the assets that exist under the decedent’s name. While you might not be required to file, it’s probably a good idea to do so. Prior to going any further, we’ll discuss what probate really is: it’s commonly referred to as the steps of “proving a will,” however, that may be a little misleading since estates usually go through the probate process even if a will is non-existent. A more detailed explanation of probate is it’s the process in which a court can overlook and approve the handling and allocation of a deceased person’s assets — even if a will is non-existent. You might have noticed from the above statements that the primary purpose of probate is managing the deceased assets. So, how are things handled when someone passes away having no distributable assets? In technical terms for cases like that, there is no need to file probate since there isn’t anything to distribute. But that does not mean you’re instantly clear with the court.
Filing a Will Requirement
If you have knowledge that someone has passed away with a will, nevertheless of their financial standing, a lot of states require you to file the will in the probate court. Filing a will is different than filing probate papers (that includes a Petition for Probate). Filing a will is simply, filing a will. If you intentionally fail to file an existent will, you may have liability in both criminal court and civil court for damages ensuing to any party that would have gained benefits from the estate. Possible creditors and beneficiaries have the right to have knowledge that they could have an interest in the estate.
So What may Happen if Probate Papers Don’t get Filed?
Even when you file the will or if a will is non-existent, filing probate papers can still be necessary to settle the estate.
Legal title to assets may be blurred.
If the deceased had assets — like a home, a vehicle, or a retirement account devoid of a designated beneficiary — these assets can’t be passed on without the court’s acceptance through the process of probate.
Heirs may have legal disputes facing you.
If the deceased passed away lacking a will yet held assets, those assets can’t be lawfully allocated not using the probate process establishing the appropriate precedence of inheritance using the state’s intestate succession law. When probate papers aren’t filed, heirs may not get what they’re legally owed and might sue.
Issues with an existing will might remain settled.
When an existing will has potential problems — like the questionability about the competency of the deceased at the time of signing or the effectiveness of the signatures — that may only be dealt with using the probate process. A lot of those issues may be avoided by taking specific steps prior to passing that are intended in protecting assets and avoiding the probate process, such as placing assets in a trust. But if prior actions haven not been taken, not filing probate papers may create a legal mess with unfortunate ramifications. If you are overcome by the hiring expense of a probate attorney or the effort it takes to file on your own, let us help you.
- “What Happens If No Probate Is Filed?” EZ, ez-probate.com/learn/blog/what-happens-if-no-probate-is-filed/.
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