When a loved one passes away, there are many tasks and responsibilities that need to be executed. Some examples include notifying others of the death, coordinating funeral or memorial services, and tying up the ends of their personal affairs. This can be a lot to handle, especially if you find out that you have been named the executor of the estate. Here, you may find yourself wondering, “do I have to file for probate?” Here’s what happens if no probate is filed, and how you might be able to avoid probate.
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Do You Have to File Probate When Someone Dies?
Technically, no, you do not have to file probate when someone passes away. There are no laws that require an Executor or Administrator of an estate to file probate documents with the court.
However, there are potential negative consequences that could stem from someone refusing to file probate following a loved one’s death. There are several incentives that often urge an individual to file for probate, for their own best interest.
For instance, you cannot legally transfer property or assets that are currently in a decedent’s name if you don’t take any action. If you wish to inherit property from the estate, then you likely have to file for probate.
Here, it is important to draw a distinction between filing for probate and filing a Will.
When an individual files for probate, they are asking the court to approve and oversee the process of distributing a decedent’s assets. The distributions are executed in line with the wishes outlined in a Will. In the absence of a Will, then the court will follow state probate laws to determine the order of intestate succession.
In other words, the key purpose of the probate process is to administer and distribute a decedent’s assets. This means that if there are no assets to distribute, then you technically do not have to file for probate.
However, this does not mean that you are automatically excused from your responsibilities as an Executor. If the decedent left behind a Will, you still must file the Will with the probate court, regardless of whether there are any assets. This is a separate action from filing for probate, as the court must be made aware of the existence of a Will. Otherwise, they would not be able to notify potential beneficiaries and creditors who have a stake in the estate. If you fail to file an existing Will, there could be consequences. You may be sued in both criminal and civil court for the damages incurred for parties who could have benefited from the estate.
The only instance in which you may have no responsibility with regards to the probate court is if there is no Will (to your knowledge) and there are no assets or property to be distributed. However, in most cases, it is beneficial to file for probate.
What Happens If No Probate is Filed?
The key reason an individual should file for probate is to allow for the transfer of assets and property out of a decedent’s estate. When an individual passes away, their property legally cannot be retitled unless the estate undergoes the probate process. This means that heirs cannot inherit their loved one’s home, car, or financial accounts without named beneficiaries, without court approval. This reason in itself usually provides enough motivation for individuals to file probate.
However, there are additional outcomes that could take place when no probate is filed. For instance, the heirs of the estate could have reason to take legal action against you. When an individual passes away without a Will but had assets in their name, there are laws used in the probate process that ensure that inheritances are still distributed. Intestate succession laws determine the order of priority in which these inheritances should be distributed. If an heir finds out that they did not receive what was rightfully theirs, and this was because probate documents weren’t filed, then they could have the legal grounds to sue you.
Last but not least, any existing issues with the Will could go unresolved. There are times in which the validity of a Will could come into question. Interested parties of the estate could come forward and question the competence of the decedent (at the time that they executed the Will). They could also question the validity of signatures on the Will, such as those belonging to witnesses. These questions can only be addressed during the probate process. When no probate is filed, then these issues could go unresolved.
To summarize, there are possible negative consequences that could result when someone fails to file for probate:
Assets cannot be passed on
You could get sued
Issues regarding the Will could remain unresolved
How Can I Avoid Probate?
The probate process is known to be costly, time-consuming, and stressful. This can indicate why a person may feel tempted to take a shortcut by not filing for probate. However, this can be a dangerous game, as explained in the section above. If you have been named an Executor of an estate and choose to accept, then you should be careful to fulfill your duties and obligations. This includes filing for probate if it is necessary.
However, there are certain ways that probate can be avoided with proper planning and preparation. For instance, an individual can take certain steps before they pass away to protect their assets while bypassing the probate process.
One popular strategy is placing assets and property in a Trust. A Trust is a fiduciary agreement in which assets and property are managed on behalf of a beneficiary. By transferring assets into a Trust, they are removed from the individual’s estate as they are now under ownership of the Trust. While an individual may not want to or be able to transfer all of their estate into a Trust, they can certainly minimize the burden of the probate process for their loved ones.
Another strategy is to find out whether the individual is located in a state that offers a small estate option. If the total value of the estate is under a certain threshold, then it may qualify for an expedited probate process that is much faster and easier. Even if the estate is over this threshold, the individual could take actions such as transferring assets to a Trust or gifting assets to loved ones during their lifetime and thus reducing the size of the estate. When they pass away, their Executor could instead file a small estate affidavit rather than probate documents.
Note that these actions must be taken by the individual before they pass away. If these previous actions weren’t taken, then filing for probate may still be required. As discussed in this guide, most individuals should not wait to find out what happens if no probate is filed. In many cases, it can result in legal quicksand.
If you feel overwhelmed by the complexity and the cost of preparing for the probate process, know that you don’t have to go through it alone. Trust & Will provides support around setting up Wills, Trusts, and other estate planning documents in such a way that will help you achieve your desired outcomes. If your key desire is to avoid probate, for example, then try out our Trust-based Estate Plan! Regardless of what your wishes are, we’re here to help. (We’re affordable, to boot!)
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