If the executor does not probate the will, assets in the deceased’s name will stay in that person’s name. This can prevent the executor from selling the estate’s assets or keeping registrations current. While some designated executors may want to avoid probate to simplify settling an estate, probating the will is often the best step to take.
What Is the Purpose of Probate?
Probate helps settle a decedent’s estate by transferring assets and paying off debtors. Failing to probate the will keeps the estate in the decedent’s name. This can lead to additional expenses that remain unpaid.
What Is Probate Litigation?
When an individual passes away, probate litigation may be necessary. In these cases, beneficiaries may be unhappy about the deceased’s wishes. Because of this, they may attempt to contest the will. Oftentimes, beneficiaries claim that the deceased party didn’t have the mental capacity to produce a valid will or that another party influenced the contents of the will through manipulation.
Probate litigation can also occur when someone—like a relative or executor—doesn’t adhere to standard procedure. When this happens, it’s important to involve a probate administration lawyer.
How Long After Death Do You Have to File Probate?
Individuals have months to file, but they can have as long as four years to begin the probate process, depending on the state. The laws in place for probate in Illinois require individuals to file within 30 days of the time the person has died, or the executor becomes aware of their role. Once the probate process begins, it can take just months, or several years before completion.
What Happens if the Executor Does Not Probate the Will?
If probate becomes a requirement, but the executor never goes through the process, this prevents beneficiaries from receiving assets or inheritance. Instead, the state will possess the assets, or they will remain frozen due to the lack of legal beneficiaries. In turn, nobody will be able to transfer, access, or sell the estate.
Some of the assets that the state could seize or freeze could include bank accounts, property, and investments. This is why it’s important for individuals to determine if probate is necessary following a person’s death.
Can an Estate Be Settled Without Probate?
It’s possible for individuals to settle an estate without probate in some cases. The majority of states enable estates to bypass the probate process and transfer estates to beneficiaries such as relatives and heirs. It depends on the types of assets at issue and the type of instrument (e.g., trust or will) that the decedent put together.
Assets transferred through a living trust may not need to go through the formal probate process. Likewise, if the decedent names a specific beneficiary, then probate may not be necessary. In these instances, the asset may go directly to the designated beneficiaries without undergoing the probate process.
When Wills Don’t Go Through Probate
There are certain circumstances when a will may not go through probate. The most common is when the court decides that a will is invalid, which would lead to a court case. This involves disputing the will, followed by the court either granting or denying probate.
Other reasons why probate may not take place include:
- Undue influence
- The will involved isn’t the final will of the decedent
- Fraudulent inducement
- Improper execution of the will
- Insufficient testamentary capacity-
How Probate Works
The probate process varies depending on the specific will and estate. The assets, beneficiaries, and creditors will help dictate how the probate process works. Typically, the probate process involves reading the will in a court setting and distributing inheritances to designated recipients.
The process normally begins with the will naming an executor who’s responsible for initiating probate. This individual has a set number of days in which they can start the process, beginning with the date of the decedent’s death. In the event of a death without a will or designated executor, the court selects an administrator to begin the probate process. Oftentimes, the administrator is a relative of the decedent.
In a scheduled hearing, it’s possible to contest the will or the executor involved. If the court decides that the will is invalid after someone contests it, the parties can request that the court distribute the assets based on the default state law. The process also involves appraising the many assets involved, which could include physical property and accounts.
Finally, the executor must pay off any remaining debts and file tax returns on behalf of the decedent. After paying all debts, the executor may petition the court to appropriately distribute all pertinent asserts that either the will or the laws of intestacy define.
When It’s Best to File Probate
While probate isn’t always necessary, it’s often a requirement following the passing of an individual when settling their estate. To avoid potential issues, it’s often best to file a will and petition for probate when unsure whether the process is required, even if it isn’t necessary. Doing so will help avoid delays that might simply prolong the potentially inevitable probate process. Otherwise, failing to file probate when needed could prevent the proper distribution of assets and inheritance.
