Why probate a will being researched by client.

Why probate a will: 3 reasons to do it now

No one wakes up in the morning and thinks, ooh, I’m excited to do some probate work today. (Well, maybe the founder of EZ-Probate, but that’s another story.)

For most of us, probate is something we’ve either never thought about or are actively trying to avoid. But if you find yourself named as the executor in a will, probate is likely in your future. 

In the midst of grieving a loss, planning a funeral, and getting through some tough days, it makes sense that you might decide to just put probate on the back burner. That’s especially true if your loved one didn’t have many assets to transfer. 

Unfortunately, delaying probate can set you up for trouble. If you have someone to help guide you through the process, probate doesn’t have to be difficult or scary.

 

Why you should probate the will now

If you’re interested in understanding when you don’t have to go through probate, we’ve written about when probate isn’t necessary and how to avoid probate for your loved ones

But in most cases, a person’s estate must go through probate after they die. When the personal representative (called the executor or administrator) doesn’t probate the will, issues can arise — both logistical and legal. 

We’ve listed three of the most common problems that can occur when people don’t probate wills. 

See: What is probate?

 

Assets can’t be transferred or protected

Probate is the only legal avenue for transferring the ownership of a deceased person’s property to someone else. We’re talking about assets that are known as “probate assets.” That includes real estate that the deceased solely owned (not in joint tenancy with someone else), bank accounts, vehicles, stocks, and other real property. 

Envision a scenario where your uncle dies. You want to sell his house, but you can’t do that until you have legal authority to transfer the title. While you’re contemplating probate, a storm causes significant damage to the home. The home is titled in your uncle’s name, and the homeowner’s insurance company will only cover damages for the titled owner of the property. 

So now you’re stuck with a damaged home that you can’t afford to fix and can’t sell. 

Of course, this is an imaginary scenario and one with some serious bad luck, but we’ve seen these types of things happen to executors who delayed the probate process. 

Besides property like homes, you don’t have access to estate funds — aka, a bank account. As executor, you have a duty to maintain the value of the estate’s assets. That means you need to keep paying the mortgage and utilities on any real estate. If you don’t have access to the deceased’s bank account, you’re paying that out of your own pocket. 

Yes, the estate is responsible for reimbursing you — but only once you’ve initiated the probate process. 

See: What happens to homeowners insurance during probate?

 

Creditors can continue to come after the estate

If the deceased had a lot of debts and not a lot of assets, you may be tempted to skip probate altogether. After all, what’s the benefit if there’s nothing for heirs to inherit?

Here’s one reason skipping probate is not a great plan:

Part of the probate process involves notifying creditors of the deceased’s death and giving them an opportunity to make a claim against the estate for the money they’re owed. You may think just avoiding creditors is a better strategy, but creditors have a way of finding people (and their relatives) who owe them money. 

Starting a probate case actually protects you. Once you notify creditors, they have a deadline (usually 3-6 months) for making a claim for their money. If they don’t bring their claim in that period, they can’t bring it afterwards.

And if the estate doesn’t have sufficient funds to pay the creditors, the debts can be cancelled. At that point, the creditors have no legal right to seek payment from the estate. 

But if you don’t ever probate the estate, the creditors can keep hounding you for their money for as long as they want. 

See: Does debt pass to the heirs of an estate?

 

You can be held personally (and even criminally) liable

When someone dies, the beneficiaries of their estate have a right to the inheritance provided for them in a will. If there’s no will, they have a right to the inheritance designated by state law. And you, as the executor, have a duty to maintain those assets for the benefit of the beneficiaries. 

Let’s revisit the previous example of your uncle dying. Because you didn’t begin probate, the value of the home has diminished significantly. That home is part of your uncle’s estate that should be passing on to his daughter, the sole beneficiary named in his will. 

Your cousin can choose to bring charges against you if she believes your mismanagement of the estate’s assets caused a reduction in their inheritance. 

The worst case scenario — criminal charges — is reserved for situations where beneficiaries believe you intentionally chose not to file the will and begin the probate process. If you didn’t file the will because you thought your cousin didn’t deserve your uncle’s assets because she left home and you took care of him, you can be held criminally liable.

 

How to probate a will 

So now that you understand why you should probate the will, how do you go about it?

The probate process can be relatively straightforward, and for most people, it is. Some cases are more complicated — when there are family businesses or complex assets or when someone contests the will. Our attorney plans can be particularly helpful in those cases.

You can probate a will in 5 steps:

  1. Petition the probate court to become the personal representative of the estate. You’ll need to file a petition for probate, an original death certificate, and a valid will with the probate court in the county where the deceased lived.
  2. Notify heirs, creditors, and interested parties. Some courts require you to use certified mail. Others just require your certification that you mailed notice of your petition for probate and of your appointment as executor. 
  3. Change the name of all assets from the deceased’s name to the estate. This usually looks like “The Estate of Max Smith.” You’ll need to do this with bank and investment accounts as well as real estate and vehicles. 
  4. Make payments. You’ll need to use estate funds to pay for funeral expenses, to pay taxes, and to pay all creditors. Once you’ve made those payments, you can provide any remaining funds to the named beneficiaries. 
  5. Report your actions to the court and request that they close the estate. You’ll need to provide a final accounting of all assets and payments to the court and to interested parties. 

 

Does every will have to be probated?

No, every will does not have to be probated. Almost every state has an exemption from the probate process for small estates — those estates whose value falls below a certain monetary threshold. States that don’t have a small estate exemption usually have a simplified procedure for smaller estates.

If the estate you’re representing is a small estate that might meet an exemption or benefit from a simplified procedure, you should still contact the court and file the will. That way you protect yourself from any future questions about your actions as personal representative of the estate. 

To be absolutely sure you’re taking the necessary steps, schedule a free confidential consultation with one of our probate experts.