Disclaimer: Consumer legal fundings and advances are not loans under applicable financing laws. Rockpoint’s products are non-recourse, meaning if you don’t win your case, you don’t have to pay us back. Receiving financial support in connection with a legal case is typically (and oftentimes incorrectly) referred to as a “lawsuit loan” or “loan.” Therefore, for the ease of search references, these terms may be used in this context to refer to our funding products, but we maintain our separateness from consumer loan products in all legal aspects.
The loss of a loved one can leave families juggling grief along with financial and legal responsibilities. One task that often falls on a relative’s shoulders is probate—the legal process for sorting out someone’s affairs after death. While it may be tempting to set aside the will and not bother with the court system, skipping probate entirely can bring unintended problems. Below is a look at why probate often matters, what can happen if no one takes on the process, and how state laws (including those in Maine and elsewhere) come into play.
The Consequences of Not Filing Probate
Probate exists to confirm the deceased person’s final wishes (if a will is in place), ensure creditors get paid if any debts remain, and transfer property to the correct heirs. If probate isn’t opened when it’s needed, several complications can arise:
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Assets Remain in Limbo
Without the court’s approval, heirs generally can’t assume legal ownership of the deceased person’s house, bank accounts, or other belongings. Beneficiaries who were counting on these items or funds might face financial stress if the assets stay locked up.
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Risk of Unlawful Claims
When no official process is underway, individuals with questionable motives may claim certain valuables, insisting they were promised them. If there’s no probate court to adjudicate disputes, it’s harder to prove who truly owns what.
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Frozen Financial Accounts
A deceased person’s bank or retirement accounts usually remain inaccessible unless the proper paperwork is completed. Without official permission from the probate court, an executor or family member can’t just walk into the bank and withdraw money, even if they’re named in the will.
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Unpaid Debts and Lawsuits
Creditors have the right to collect on debts. If no one steps up to handle those obligations through probate, they might sue the estate or put liens on property. These legal actions can create a headache for any beneficiaries who want to keep the property or eventually sell it.
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Potential Liability for the Executor
In some states, an individual who’s legally appointed or identified as the executor must fulfill that responsibility. Failing to do so may open them up to lawsuits from beneficiaries or other interested parties, who can argue that the executor neglected their legal obligations.
Even if ignoring probate won’t land someone in jail, the decision to avoid it might set off conflicts among relatives or creditors. Heirs expecting a share of the estate could file lawsuits if they believe the estate’s named executor isn’t doing the job.
Why Probate Is Often Required Anyway
It’s a misconception that a will alone means probate isn’t necessary. In truth, a will typically goes through the probate court so a judge can confirm it’s valid and so creditors have a chance to come forward. If the deceased person lacked a will, the estate goes through intestate succession laws—like those in Maine or other states—that decide who inherits based on existing statutes.
Without a Will
If a person passes away intestate (no will), you can’t skip probate. The estate still needs to distribute property under laws specifying which relatives receive what share. This distribution is handled by the court, so it’s not a matter of personal choice. If the property includes a house, farmland, or a family business, dividing these assets without official guidance can quickly get messy.
With a Trust
Some families avoid probate by placing property into a living trust while the individual is alive. Assets in a trust typically bypass probate, because legal ownership belongs to the trust rather than to the deceased. But if not everything was put into that trust, any remaining items in the decedent’s name likely still require probate.
The Myth That “Probate Is Too Expensive to Bother With”
While probate does involve court fees and sometimes attorney costs, it may not be as costly or time-consuming as some assume, especially if the estate is straightforward. Many states have a small estate exemption (e.g., under $10,000 in some places) that streamlines or even bypasses many formalities. This can wrap up fairly quickly, contrary to the idea that every probate takes years. If the estate’s assets are beyond that threshold, however, full probate may be unavoidable.
Filing a Will Isn’t the Same as Opening Probate
State law often requires whoever holds the original will to file it with the local probate court in the county where the deceased lived, even if you’re not planning to open probate. Missing this deadline—sometimes 30 days, sometimes three months—could lead to legal trouble. Filing the will doesn’t necessarily force you to undertake the entire probate process, but not doing so could violate your duties as an executor.
If the will is hidden or left undisclosed—especially if the named executor stands to gain more by not revealing it—this can lead to serious consequences. In some extreme situations, attempting to conceal or destroy a valid will for personal benefit might prompt criminal charges.
Steps for Opening Probate
If you realize probate is necessary or decide it’s simpler to follow the legal path, here’s a typical outline:
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Collect Key Documents
Gather the will, financial statements, and details on real estate or other valuables.
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File with the Court
Submit the will to the probate court in the correct county. If you’re named as executor, you must decide whether to accept or decline that role.
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Notify Beneficiaries and Creditors
The executor sends notices to heirs and posts a public announcement so creditors can file claims.
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Manage Debts and Taxes
Valid debts get paid out of the estate, and any owed taxes are settled.
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Distribute Remaining Assets
Once obligations are covered, the executor divides up what’s left according to the will (or state law if there’s no will).
Depending on how large or complicated the estate is, this can run smoothly—or take a while if disputes or complicated assets are involved.
Getting Financial Help If Probate Drags On
If you or other heirs require money sooner than the court can provide it, an inheritance advance might help. Rockpoint Probate Funding, for instance, can sometimes offer a cash advance based on what you expect to inherit. Then, once probate eventually ends, Rockpoint recovers its portion from your share. That way, you aren’t stuck with day-to-day bills or funeral costs piling up while months go by with no distribution.
The Bottom Line
Refusing to file probate when it’s required can create long-term hassles for everyone involved. Assets remain frozen, creditors remain unpaid, and beneficiaries may feel cheated or go after the executor for not fulfilling legal obligations. A will alone or a promise among family members often isn’t enough to bypass the court’s authority—unless prior estate planning structured everything to skip probate. Taking that official step, even if it sounds inconvenient, can ultimately save a lot of trouble. If finances get tight during the waiting period, inheritance funding can fill in the gap, allowing families to cover essential expenses while the legal process unfolds.
