Probate is the court proceeding where a will is verified, and an estate is administered according to the terms of the will. Probate is also used where no will exists, in which case an estate will be administered under the terms of DC law. The process includes the collection of assets, the liquidation of liabilities, the payment of taxes, and the distribution of property to heirs. In cases where someone who passed away did create a will, that person will have chosen an executor who is tasked with initiating the probate process. Although the executor of a will has many important responsibilities concerning the will, the executor is able to opt out of these responsibilities at any time.

Furthermore, even if the executor of a will does not probate the will, criminal charges will typically not be able to be brought against them. Although criminal charges cannot be brought against the executor for not filing a will in probate court, there are many legal and financial issues that occur when the executor does not probate a will.

Requirement to File a Will

Filing a Will

There is a difference between filing a will and starting probate. In most states, if someone is in possession or has access to the will of someone who recently died, they must file the will within 1 – 3 months. Furthermore, the person that has the will must file the will at the court in the county where the deceased person resided. Even if the person who created the will had no assets that they left to their beneficiaries, the will must still be filed. Finally, as stated above, an executor named in a will does not have to take on these responsibilities if they do not want to. However, even if the executor does not want to take on these responsibilities, they must still file the will if it is in their possession.

Filing a Will in Probate

Initiating a probate case is more complex and requires many more steps to complete then simply filing a will. To start the probate process, a personal representative must file a petition for probate with the state court. This petition must include the name and address of the petitioner and information regarding the death of the principal. In addition, one must tell the court if the principal made a will, as well as estimate assets and debts. One final note on the description of debts and assets. You must also include the names of potential creditors and beneficiaries. Regarding probating a will, most states have a statute of limitations of 4 years. Thus, an executor or family member has 4 years after the person who created the will died to start the probate process.

This could lead to severe issues as instead of distributing assets according to the will, the assets within the estate will be distributed under intestate laws that are controlled by the state where the assets within an estate reside.

Penalties for the Personal Representative

In most cases, a named personal representative or executor who fails to file the will with the local probate court cannot be criminally prosecuted. The one exception to this rule is if the personal representative or executor fails to file a will because they want to conceal the existence of the will for their own personal or financial gain.

While most executors or personal representatives will not have criminal charges brought against them, it is more common that they are held personally liable for losses that should have been avoided, such as theft of assets or investment losses from not filing a will in the probate court. Commonly, these are civil lawsuits brought against the executor or personal representative by beneficiaries to an estate or creditors that have claims against the estate. More specifically, the beneficiaries to the estate can sue for damages because they have not received the assets that they are entitled too. Below are some of the most common issues that occur when a personal representative or grantor does not probate a will.

Legal Title to Assets Clouded

One of the most common issues when an executor or personal representative does not probate a will is that titled assets will remain in limbo with cloudy titles until the estate is properly probated. When someone passes away and assigns their titled property such as real estate or vehicles, the beneficiary of these assets must have the title transferred to them. The reason for this is that the court needs to verify the will and the title. After this, the court will provide documentation so that the executor can transfer the assets to the beneficiaries. Furthermore, title companies or other agencies that can transfer titles need this confirmation. Until they receive the necessary documentation, they will not complete the transfer. The one exception to this rule is if the beneficiary to an asset was named in a pay on death account.

Heirs Could Have Legal Claims Against You

If an estate does not go through probate court yet contains assets that must go to a beneficiary, the beneficiary can sue the executor for failing to complete their job. In this case, the beneficiaries can sue to receive their property. Additionally, they can sue the executor for any lost financial assets or damage to properties. These lost assets or damage must have occurred because the assets were not transferred in a timely manner.

Creditor Claims

If someone dies and has unpaid bills or debt, creditors will have a claim against that persons estate. When probate is filed, the creditors will typically have 4 months to file a claim to pay for these claims. However, if someone dies and their assets do not go through probate, the creditors have 1 year to file a lawsuit against the estate to seek repayment of these debts.

Problems with an Existing Will

Another possible issue that can occur if a will does not go through probate relates to if one beneficiary to the will believes that the will was forged or created under duress. To contest a will, the will must go through court. In this case, the judge will consider all relevant evidence and then decide if the will is valid. Validating a will becomes more difficult the longer removed a will is from its original creation. The reason for this is that evidence becomes harder to find and eyewitness testimony becomes more unreliable.  

Situations Where a Will May Not Need to go Through Probate

A will does not allow you to avoid probate. However, there are multiple ways for you to allow your assets and family to avoid the probate process.

Hold Property Jointly

There is one main benefit of adding a joint owner to your assets before you pass away. This benefit is that the assets automatically transfer to the co-owner without having to go through probate.

Joint Tenancy with Right of Survivorship

Owning property that is in joint tenancy when you die can help you avoid probate. This option avoids probate because the assets automatically go to the surviving party without having to pass through probate.

Tenancy by the Entirety

Tenancy by the entirety avoids probate in the same way as joint tenancy with right to survivorship. However, this option can only be used by married couples.

Community Property with Right of Survivorship

Co-owning a property under community property with right to survivorshipv can be useful. The reason for this is that when one partner passes away, the assets automatically transfer to the surviving party.

Create a Revocable Living Trust

A revocable living trust allows you to place your assets and property in the trust. Furthermore, the trustee manages the trust. The trustee is someone you designate who will manage the assets and distribute them once you pass away. To avoid probate, you must designate someone else to manage the assets. The reason for this is that once you fund the trust, the trustee will own the trust property.

Create Pay-on-Death Accounts and Registrations

This type of account allows you to list a beneficiary. Thus, when you pass away, the monies in these accounts will automatically transfer to the beneficiary.

Gifts

The most extreme way to avoid probate is to simply gift your assets to family or friends. Even if you do not give every single asset you own, gifting some of your assets will lower probate costs. 

Small Estates

Most states have a small estate probate exemption. In this case, if the total value of someones estate falls into the small estate threshold, the estate does not need to go through probate.

Final Thoughts

Because each state has specific laws and procedures tied to probate, finding correct and relevant information is difficult. By hiring a probate attorney, you are enlisting someone with knowledge of the state-specific laws. Furthermore, you will also have someone on your side to help you deal with potential creditors. Finally, a probate attorney will be able to help you distribute the assets in the most tax-efficient way.

Finally, a probate attorney is helpful in assisting with marshaling and valuing all the estate assets, assisting with finishing the accounting, completing the estate tax returns (death tax returns), and overseeing the asset distribution process. Most importantly, however, a probate attorney can asset the personal representative with preparing the initial pleadings to open the estate. A probate attorney can also help to guide the personal representative through their fiduciary obligations and important deadlines.

Contact our law office for more information

For more information on the consequences of not probating a will, contact Antonoplos & Associates at 202-803-5676. You can also directly schedule a consultation with one of our attorneys.