A will contains who the executor is, which is an individual who a deceased person wanted to manage his or her assets. When a person dies, the executor will need to probate a will.
The probate process can get complicated and complex. It’s common for most people to write and prepare their will years before their unfortunate death. When the named executor passes away first, or the executor no longer wants the responsibility. What happens then?
If you’re named executor, you’re not required to probate a will. However, it doesn’t also mean you can just forget about the will of the deceased individual. Most states in the country mandate any person in possession of a will submit it to the court.
The deadline for submitting the will varies by state. The filing deadline can either range from a month to three months. It’s best to check with your jurisdiction for the most accurate information that applies to you. You can also seek the professional assistance of a probate lawyer.
Are There Penalties?
Failure to submit the will within the specified time frame by your state can lead to severe consequences. Even though failing to provide the will is not a criminal violation, some states accept lawsuits by other parties affected (whether financially, emotionally, etc.) by failure to file the will.
For instance, Washington state laws punish any individual who deliberately didn’t submit the will in court. This individual can be liable to parties for damages experienced as a direct result of failing to provide the will.
Criminal liability is possible if an individual didn’t file the will deliberately due to wanting to get financial gain.
For instance, if your parents decided to leave a significant amount of their assets to a charity or another family member. You opted not to submit their will when they passed.
Intestate succession laws dictate that as the closest relative, you’re subjected to get your parents’ complete estate. In this example, you not submitting the will because you know you’re not getting the estate in its entirety could uncover you as a criminally liable.
Insolvent Estates and Creditors’ Claims
When people pass away, it’s not uncommon to discover their unpaid bills. To probate a will cuts the time and effort of a creditor to file a claim against the deceased person’s assets. Generally, the creditor must file within four months from the date a personal representative or executor is named to probate a will.
The claim is open for rejection if it’s filed late. When the probate court is not in session, the creditor has up to a year to claim against the assets.
In some cases, a deceased person’s will is not filed when the asset is insolvent. This means that there are more unpaid bills than there are assets. In this scenario, the relatives or close friends of the deceased do not have a legal obligation to shoulder the debts, communicate with the creditors, or probate a will Thus, the simplest and most straightforward solution is to abandon the issue and not open probate.
If you have a friend who passed away and left a prized possession – whether it’s a classic car or a one-of-a-kind collection – it’s most likely not covered by probate.
These instances where small estates are concerned are not covered by probate.
It’s a good thing that most states have an already established and streamlined process for small estates transfer. Refer to your state laws, or get the assistance of a probate attorney if you must.
Do You Always Need to Probate a Will?
When a person with a will dies, probate is not always going to be a necessary procedure. Keep in mind that opening probate and submitting a will are two different processes. Even if probate is not needed, the will must be submitted to the court.