What happens if no probate is filed?
When someone dies, you (as an executor or administrator of the estate) are not required by law to file probate documents. However, what happens if no probate is filed for the estate is you will not be able to legally transfer title of any assets that exist in the decedent’s name. So while you may not be required to file, it’s likely in your best interest to do so.
Before we go any further, let’s talk about what probate actually is: it’s often referred to as the process of “proving a will,” but that can be a bit misleading because estates often go through the probate process even when there isn’t a will.
A more thorough explanation of probate is that it’s the process through which a court oversees and approves the management and distribution of a deceased person’s (decedent’s) assets — whether there is or isn’t a will.
You may have noticed from the above description that the key purpose of probate is handling the decedent’s assets. So what happens if someone dies without any distributable assets?
Technically, in that case, you don’t have to file probate because there’s nothing to distribute. But that doesn’t mean you’re immediately off the hook with the court.
Requirement to file a will
If you are aware that someone has died with a will, regardless of their financial situation, most states require that you file that will with the probate court. Filing a will isn’t the same as filing probate documents (which include a Petition for Probate). Filing a will is just that—filing the will.
If you knowingly fail to file an existing will, you could be liable in both criminal court and civil court for damages resulting to any party who would have benefited from the estate.
Potential beneficiaries and creditors have a right to be made aware that they may have an interest in the estate.
So what happen if you don't file probate and no probate is filed?
Even if you file the will or if there’s no will at all, filing probate documents may still be necessary to resolve the estate.
1. Legal title to assets could be clouded.
If the decedent held assets — such as a home, a car, or a retirement account without a named beneficiary — those cannot be passed on without court approval through the probate process.
2. Heirs could have legal claims against you.
If the decedent died without a will but had assets, those assets cannot be lawfully distributed without the probate process determining the appropriate priority of inheritance through the state’s intestate succession laws. If probate documents are not filed, heirs may not receive what they are legally due and could sue.
3. Problems with an existing will could remain unresolved.
If an existing will has a potential problem — such as questions about the competency of the decedent at the time of signing or the validity of the signatures — that can only be addressed through the probate process.
How to avoid probate
Most of those problems could be avoided by taking certain steps prior to death that are intended to safeguard assets and avoid the probate process, like putting assets in a trust.
But if previous actions haven’t been taken, failing to file probate documents could create a legal quagmire with unfortunate consequences.
If you’re overwhelmed by the cost of hiring a probate attorney or the work involved with filing yourself, let us help.