Paul Horton: What Happens if You Don’t Probate the Will?

When a person dies with a will, they typically name a person to serve as their executor. The executor is responsible for making sure that the deceased’s debts are paid and that any remaining money or property is distributed according to their wishes.

It’s not uncommon for wills to be written years before a person dies. Once death occurs, the executor should file the will in court to begin the probate process. But it’s not always that simple. Sometimes an executor dies first. Or an executor can decide they no longer want the job. So, what happens if you do not probate a will?

Utah Probate Law

In Utah, you have to probate a will within three (3) years of the person’s death. You aren’t required to serve as the executor of a will, even if you made a promise to the deceased that you would. This doesn’t mean you can stick the deceased’s will in a drawer and forget about it. Most state require any person in possession of an original signed will to deposit it at the court of the county where the deceased resided. Filing deadlines vary by state, range from 30 days to 3 months.

Penalties to the Personal Representative

Failing to file a will within the time required by the state can have serious consequences. Although failure to file by itself is not a criminal violation, in most states this subjects the person to a lawsuit by someone who was financially hurt by the failure to file. For example, in Washington the law says that anyone who “willfully failed to file a will with the court” is liable to any injured party for the damages resulting from the violation.

Criminal liability could occur if the failure to file a will is coupled with an intent to conceal the existence of the will for financial gain. For example, your father decided to leave his entire estate to a favorite charity and left you nothing. You decide not to file his will. The laws of intestate succession allow you to inherit your father’s entire estate. In this instance, a failure to file the will would likely expose you to criminal liability.

Creditors’ Claims and Insolvent Estates in Probate

When people die, its common to have unpaid bills. Opening probate cuts short the amount of time a creditor has to claim against the estate. A creditor must file their claim within four months from the date an executor or personal representative is officially appointed. A creditor’s claim may be rejected by the executor if it is filed late. When probate is not opened, a creditor has one year to file suit against the estate.

It is common for a will not to get filed when the deceased’s estate is insolvent, meaning there are more bills that money. In general, relatives and friends have no legal obligation to do anything to pay the debts, to communicate with creditors, or open a probate. So, the simplest solution is to file the will and walk away from the problem by not opening probate.

Transferring Title to Property

Imagine if a friend passed away leaving a prized classic car in her will. Your friends had few other assets. Since the estate is small, it’s likely exempt from probate. Remember, probate is processes that transfer legal title of property from the estate of the person who has died to their beneficiaries.

Fortunately for you, most states have a streamline processes for transferring title in small estates. The process is generally referred to as “transfer by affidavit” and may be used to collect personal property of the deceased without probate. State law will set the maximum fair market value of the deceased’s entire estate that can pass in this manner. You will still likely need to produce the will to show your legal right to inherit the car.

File a Will That Doesn’t Require Probate

Probate isn’t always necessary. People frequently don’t bother to file a will if there is no apparent need to open probate because the person left nothing of the value or because all items of value were put into a trust, a joint account or some other form designed to avoid probate.

Remember, there is a difference between filing a will and opening probate. Even probate seems unnecessary, the will must be filed. It’s not that unusual to discover property belonging to the deceased years after their death. And some states, such as Nevada, allow probate to be opened decades after a person has passed. In such an instance, the will would allow the newly discovered assets to be distributed.

Free Consultation with a Utah Probate Lawyer

If you are here, you probably have a probate or estate matter that you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.