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Your loved one has passed on, and, to your surprise, they named you the executor of their will. The thought of handling probate makes you break out into a cold sweat because you think it’s expensive, time consuming, and just not worth the headache.
What happens if probate is not filed? Can you simply put the will in the back of a drawer and forget about it?
Per Maine probate laws (and probate law in other states), you don’t necessarily have to file probate, but failing to do so comes with unpleasant consequences.
What Happens if You Don’t File Probate?
The probate process involves sorting out the deceased’s estate, handling their final expenses and debts, and distributing estate assets to beneficiaries as stipulated in their will. A specific person, called the executor or administrator, is in charge of these tasks.
If that person is you, you may not want the hassle of dealing with executor responsibilities. However, failing to file probate can cause serious problems, such as the following:
- Assets cannot be passed on: Until you file probate, the deceased’s assets can’t legally transfer to their beneficiaries. This could be problematic if those beneficiaries are depending on those assets for financial reasons.
- Illegitimate asset claims: Without probate, heirs may step forward to try and take assets that aren’t rightfully theirs.
- Frozen accounts: The deceased’s accounts, such as their bank and retirement accounts, will remain frozen until they pass through probate. That means you won’t be able to access the funds.
- Angry creditors: If your loved one had debts, creditors might come forward to reclaim what’s theirs. Creditors could sue the estate in an attempt for debt settlement.
- Lawsuits from beneficiaries: Not doing your job as the executor? Watch out for legal claims from upset beneficiaries.
What happens if probate is not filed? In short, while you might not end up in jail for failing to file probate, you could face wallet-draining lawsuits and strained relationships with surviving family members.
Common Myths About Opening Probate
There are plenty of myths floating around about probate, some of which may cause an executor to think that probate isn’t necessary. Let’s take a look at a few of those here.
- Your family member had no will, so probate is unnecessary: This is one of the biggest myths about probate, and it’s patently untrue. Even if your loved one died with no will, their assets need to pass to heirs according to intestate succession laws, a process that requires probate to complete.
- You don’t need probate because your loved one had a trust: While it is true that assets placed in a trust don’t need to go through probate, you’ll still need to open probate for any assets not in the trust.
- Probate is too expensive and time consuming: Probate can be time consuming for complicated estates, but if your loved one had a simple estate, you might be able to complete the process in a couple of weeks or less. Some states offer a small estate exemption for estates below a certain value, such as $10,000.
Opening Probate Isn’t the Same as Filing a Will
You know what happens if probate is not filed, but what about the will? If you have the deceased’s original signed will, you’re legally required to file it with the probate court in the city or county where the deceased died. This is true even if you don’t plan to go through probate. Deadlines to file vary by state and can range from 30 days to three months.
Note that just because you’re obligated to file a will doesn’t mean you’re required to open probate, even if the deceased named you as their executor. You don’t have to prove the validity of the will, either.
Failing to file a will can have serious consequences. As an executor, you have a fiduciary duty to beneficiaries, and they’re within their rights to sue you for damages if they can’t access their inheritances.
In some cases, you could face criminal charges for not filing the will. This could happen if you intentionally hide the will for your own financial gain. For example, suppose your mother died and left you nothing in her will, but she left her house to her grandchild.
You don’t file the will, so the house passes to you according to intestate succession laws. If your deception is discovered, you might face criminal charges because the house legally belongs to the grandchild, not you.
How To Start the Probate Process
If you’re convinced of the importance of probate, here’s how to start the process:
- Gather the deceased’s important documents, including their will, financial statements, and information about their trust, if they had one.
- File the will with the probate court in the county where the deceased lived. If the deceased named you as the executor, you can either accept or deny the role. If you don’t want to be the executor, the court will choose someone else to serve as an administrator.
- If you’ve decided to serve as the executor, you’ll have to notify the deceased’s heirs and creditors of their death. You will also need to disburse assets once the probate process is over.
Need Further Guidance on Probate? Call Rockpoint Probate Funding
Now that you know what happens if probate is not filed, maybe you’re wondering how long it’ll take to settle the process and collect your inheritance. If you can’t wait for probate to finish or have questions about inheriting a parent’s house, reach out to Rockpoint Probate Funding at (888) 263-8588.
