When a person creates a will, he or she typically names a person who he or she wants to execute the estate. It is the executor’s responsibility to distribute the testator’s assets upon his or her death, and for settling all debts.
The law does not require a person to serve as an executor, even if the will names him or her as one. However, most states require any person who possesses a will to file the document with the local courts. Though each state has its own filing deadline, possessors typically have between 30 days and three months to deposit the will. What happens if the person in possession of the will fails to do so, though?
Penalties for failing to file probate
According to FindLaw, failure to file probate can have serious legal consequences. While choosing not to file probate is not a crime per say, you may subject yourself to civil lawsuits for neglecting your responsibility. For instance, if your niece stood to gain the family home and considerable cash in probate, she could file a lawsuit for damages.
If you choose not to file probate with the intention of concealing assets for your own financial gain, you may be subject to criminal consequences. For example, say your mother decided to leave her entire estate to a charity. You, wanting to acquire her wealth through intestate succession, choose not to file. This leaves you open to criminal liability.
Creditors’ claims and insolvencies
Many people have unpaid bills when they pass away. When an estate executor files probate, creditors have up to four months to file a claim against the estate for the amount due. However, when a family chooses not to open probate, creditors have up to one year to claim their money.
When an estate is insolvent — meaning the deceased owed more than he or she owned — it is not uncommon for the family to file the will and walk away without opening probate. Creditors who choose to file receive parts of the estate in order of priority.
Some people do not have considerable wealth, but they do have one or two prized possessions. For example, your grandfather may have passed away with little to his name save for a classic 1966 Shelby GT350. He may have told you he wanted you to have it, but he did not leave a will expressing this. In this case, you may be able to ask the courts to transfer the title to the property via a process called “transfer by affidavit.” This is a streamlined process that allows heirs to acquire property without opening probate.