The Consequences of Not Probating a Will
When it comes time to writing a will many of us struggle to follow through with the necessary steps. We all know we should have one, but there is much more to it than just writing it. Namely one must have their will probated. Probating a will is the legal process that reviews a person’s will and determines whether that will be valid and authentic. Probate is also the process of administering a deceased person’s will, in which an executor, typically outlined by the will, is appointed by the court. Probating a will ensures that the will is executed in the way that it was intended to be as it is protected under law. Not probating the will could result in unintended consequences for both the executor and beneficiaries of the will.
Filing vs Probating
There is a difference between simply filing a will and probating the will. Filing the will is easy and does not have the same legal backing. When a person dies the person in possession of the will has one to three months to file the will depending on the state, they live in. The will must be filed in the county that the deceased lived in. The executor of the will must file the will but does not have to shoulder the responsibilities of the execution of the will as they can opt out at any time of the process and transfer the responsibilities to another person or to the state.
To probate the will a representative must file a petition to the court to start the probate process with the state court. Included in the petition will be the name and address of the petitioner and the circumstances of the death of the deceased as well a description of the assets and an estimated value of the assets and debts of the deceased. There should also be a list of potential creditors and beneficiaries.
One consequence of not probating a will is that the beneficiaries will not have any sort of legal recourse if your executor or representative does not follow through on your will properly. If the will is probated, then criminal charges can be brought on an executor of a will that withholds filing a will for personal or financial gain.
Alternatively, a civil case can be brought if they mishandle the execution of the will in order to properly appropriate assets. The intended beneficiaries can sue for damages if they believe that the will has not been properly carried out or if they have not received assets that they should have received as outlined by the will.
Not having a probated will leaves the intended beneficiaries unable to pursue legal action as the will is not a recognized legal document
Impact on Assets
Another consequence of not probating a will is that your assets may not be passed out to your beneficiaries at all. Not having a probated will may cause your assets to fall into limbo until your will is properly probated. This is especially true of assets with titles such as your house or car because the beneficiaries of these assets must have the title transferred to them. The court must verify the will and the title in order to be able to provide the proper documentation for the executor to be able to transfer the titles from the deceased to the beneficiary. Also, the title companies or other agencies need this court documentation in order to transfer the titles otherwise they will not complete the transfer of the titles. These court documents are only available to the executor if the will has been probated.
You could also have issues with creditors if you do not probate your will. If you have debt or unpaid bills when you pass your creditors have a year to file a lawsuit against the estate in order to have those debts paid. If you probate your will those creditors only have four months to file a claim rather than a lawsuit and generally a payment plan can be worked out.
The probate process also ensures that there are no forged or falsified wills executed. This includes wills that were made under duress. If the will is probated the beneficiaries can contest the will in court if they believe there is some issue with the will. A judge will hear the case and weigh any evidence provided. The longer it has been since the creation of the will the harder it will be for the judge to make any decision against the legitimacy of the will in question, however. This is due to the increased difficulty of finding evidence and the legitimacy of eyewitness testimony.
Although probating a will is an intensive and arduous process the reduction of potential risks in the execution of the will is well worth it. The consequences of not probating a will far outweigh any benefits.
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