If a loved one has died, you may be experiencing grief, which can make it difficult to focus on anything else. The probate process, in particular, may feel like an unnecessary nuisance. You may be wondering how essential probate really is and whether it can be bypassed.
Suppose your loved one died with only liquid assets that can easily be transferred from their financial accounts to the designated beneficiaries on the account or to the beneficiaries named in their will. What happens if probate is not filed in this scenario?
Suppose the lion’s share of your loved one’s assets is being held by the trustee of their trust. What happens if a will is not filed in this scenario?
Suppose your loved one died with only two immediate family members: You and your mother. Since there are no disputes over property between the two of you, is it acceptable if the estate is not probated?
Suppose the executor named in your loved one’s will has been abroad for some time now and cannot be found. What happens if an executor fails to act in this scenario? Could probate be postponed indefinitely?
While probate could potentially be bypassed in a few of the scenarios mentioned above, not enough facts are provided to make a concrete determination about whether or not probate is needed.
Remember, there are many reasons why probate is required. In fact, even when a formal probate is not required, it may be necessary for a court proceeding to take place before any of the decedent’s assets can be distributed to beneficiaries.
While this article will provide a basic summary of when probate is required and what the consequences of not probating a will could be, it is best to consult with a knowledgeable probate attorney about the specifics of your situation before deciding to altogether skip the probate process.
What Is the Probate Process?
Probate is a court-supervised process for estates valued at $184,500 or higher that must pass through before its assets can be distributed to estate beneficiaries or heirs. Even when someone dies without a will, the probate process is generally required.
During probate, the court will authenticate the decedent’s will (if they had one) and appoint an executor or administrator (called the personal representative) to preside over the estate. Once a personal representative is appointed, they can begin the process of inventorying the decedent’s assets and paying their creditors. Only after these steps are completed can the personal representative seek permission from the court to distribute the assets that remain in the estate to beneficiaries.
People try to avoid probate because of how time-consuming and costly it can be — probate fees can be considerable, and beneficiaries generally won’t see any portion of their inheritance until the close of estate administration, which can be anywhere from six months to a year or longer after the decedent’s death.
If you focus only on the disadvantages of the probate process, however, you may not see the silver lining, which is that probate is supervised by the court. Because of this fact, there may be more transparency during administration, making it easier for interested parties to swiftly address issues, such as executor problems with beneficiaries, should any arise.
By comparison, if a trustee is not being forthcoming with trust beneficiaries, the beneficiaries may not have as easy of a time as estate beneficiaries obtaining trust documents or information about the trust, since trusts generally bypass probate and are intended to be private.
How Is Probate Opened?
To open probate, an interested party (generally the executor named in the will) must file a Petition for Probate and lodge the original will (if any) with the court. Once this happens, the court will set a date and time for the initial probate hearing.
Next, the party that opened probate must deliver notice of the hearing to interested parties at least 15 days prior to the hearing so the parties have ample time to file a formal objection to the opening of probate or can attend the proceeding to object in person if they so wish. Additional requirements for hearing notices can be found in California Probate Code sections 8110 – 8113.
Finally, notice of hearing must also be published in a local newspaper in general circulation to notify creditors and others who may have an interest in the estate about administration. Additional requirements for publication of these notices can be found in California Probate Code sections 8120 – 8125.
If there is no will, virtually the same steps for opening probate would apply. The only differences would be that Petition for Letters of Administration would be filed in lieu of a Petition for Probate, no will would be lodged with the court, and the administrator would be appointed based on the order of priority described in California Probate Code section 8461 rather than based on the decedent’s nomination.
How Long Do You Have to Probate a Will?
If you’re still recovering from your loss, it’s understandable why you may prefer to postpone opening probate. Unfortunately, while you can take a little time to open probate, waiting too long could bring about undesirable consequences, such as your loved one’s estate being placed under the control of an outside party rather than under a relative’s or close acquaintance’s control.
So, when does a will need to be probated by? California Probate Code section 8000 states that interested parties can initiate proceedings for administration of a decedent’s estate at any time after the decedent’s death by filing a petition for an order determining the date and place of the decedent’s death and for one or both of the following: appointment of a personal representative and probate of a decedent’s will. This statute also states that a petition to probate the decedent’s will can be made regardless of whether the petitioner has the will in their possession, or the will has been lost, destroyed or is beyond the state’s jurisdiction.
According to California Probate Code section 8001, the executor could be held to have waived their right to appointment if they fail to file a petition for administration of the estate within 30 days of learning of the decedent’s death and their nomination as executor, unless a good cause for the delay is shown. That said, executors should not worry if they have not filed their petition within this 30-day time period, as this statute is seldom enforced. They simply should aim to file as soon as possible with help from a probate attorney.
Executors should work toward completing the probate process within one year from the date of the decedent’s death. Of course, this timeline can vary depending on the size and complexity of the estate. If an estate is simple, for example, probate may only take six months. If an estate is complex, it could take anywhere from 12 to 18 months or longer.
There are also other factors that could complicate probate timelines, such as will disputes, property disputes and fiduciary misconduct claims. If you wish to learn more about how much time you reasonably could take to complete probate, it would be advisable to speak with a probate attorney.
Keep in mind that taking too long to complete probate can be seen as a red flag and ultimately could result in you being suspended or removed and potentially even surcharged.
What Happens if an Executor Fails to Act?
If some time has passed since the decedent’s death, and the executor still has not opened probate, an interested party (such as a beneficiary, heir or creditor) could potentially open probate themselves.
Because creditors have only one year from the date of the decedent’s death to file their creditor claim, they may be particularly eager to open probate if an executor is not taking the necessary steps to do so themselves. This likely would be the worst-case scenario, as it would leave the decedent’s assets in the hands of a third party, who may not have the best interests of the beneficiaries in mind.
Does a Will Have to Be Probated in California?
It is almost always necessary for a will to be probated in California. Even when there is no will and intestate succession laws will be guiding the distribution of assets, probate will be required. The only exception would be if the estate in question is valued at less than $184,500, or where another alternative to probate is available, as discussed below. In such an instance, probate can generally be avoided through various means.
First, it’s important to understand what assets an estate consists of so you can accurately calculate the value of the estate in question. Estate assets comprise any assets that are not being held by the decedent’s trust or being distributed via beneficiary designations or deed transfers.
An example of an asset that may not be regarded as an estate asset is a decedent’s bank account, since bank accounts often have designated beneficiaries who are entitled to claim the assets in the account upon the decedent’s death without the asset being probated. Conversely, if there is no beneficiary designated on a decedent’s bank account, the bank account would likely be considered an estate asset, which could mean that probate will be required.
Even if an estate’s value is less than $184,500, probate may be required if the decedent has considerable outstanding debts, because creditors need to be provided an opportunity to file their creditor claims before any transfers of the decedent’s property take place.
If you’ve determined that probate is unnecessary for a particular estate, you may be able to utilize an alternative to probate to transfer ownership of assets from the estate to a beneficiary or heir.
Keep in mind that the small estate limit can change from year to year. To view the most recent limit, click here.
What Are Some Alternatives to Probate?
When an estate is valued at less than the value discussed above, or where a decedent’s assets pass to his or her spouse, a simplified probate procedure could potentially be used in place of a formal probate to transfer assets from the estate to beneficiaries or heirs.
A Spousal Property Petition, for example, would allow the decedent’s surviving spouse to confirm title and transfer ownership of property in a decedent’s estate to themselves in as little as one probate proceeding. However, as you might suspect, this type of petition is reserved for spouses and registered domestic partners of decedents.
A Small Estate Affidavit, on the other hand, can be used by anyone who stands to inherit from the decedent’s estate to transfer certain types of property to their intended recipients without anything being filed in court. Property that cannot be transferred via this type of petition includes real properties and motor vehicles.
Finally, a Petition to Determine Succession to Real Property can be used to reach a determination of who the new owner of a property is. Once the court confirms the new owner of the property, it will issue an order for the transfer of ownership. Remember, this petition can only be used if the cumulative value of an estate (including real properties) is less than $184,500.
If you are unsure whether an estate can utilize a simplified probate procedure, it is best to consult with a probate attorney before filing any petitions. Your attorney will be able to present you with the most cost-effective option for transferring property after learning more about the estate you are inheriting from or overseeing.
What Are the Consequences of Not Probating a Will?
If you have been named in a will to serve as executor, it’s generally advisable to get started with the probate process as soon as possible.
As we’ve already explained, the probate process for high-value estates is important for numerous reasons, the most important of which is that the decedent will remain the owner of their assets if they are not probated.
For example, suppose a decedent left you their home in their will. Because you already reside in the home and the decedent doesn’t have too many other assets, it seems like a waste of your time to probate the estate and transfer title to the home into your name. But what if you need to sell the home down the road because you have emergency expenses?
While you still could potentially open probate to transfer title years into the future, you may have to jump through more hoops and spend more money to achieve your desired outcome. There are also many negative tax consequences that you could bring upon yourself if you don’t timely probate the home.
Needless to say, the consequences of not probating a will are undesirable for everyone involved. We go over what some of the consequences of not probating a will are in the following subsections.
Estate Assets Could Be Inaccessible to Beneficiaries
What happens if probate is not filed and beneficiaries wish to claim their inheritances?
If an estate is not probated, beneficiaries/heirs cannot legally become the owners of estate assets. In other words, estate assets could remain frozen. This is for a few reasons.
First, if a will has not been authenticated by the court (which is one of the first steps of the probate process), there is no way to know for sure that the document in question is the actual last will and testament of the decedent. By extension, there would be no way to know for sure whether the beneficiaries named in the will are the decedent’s intended beneficiaries.
Second, if a decedent’s creditors have not been notified or provided with the opportunity to file creditor claims (which is an essential part of the probate process), it would be impossible to predict how much each beneficiary’s inheritance would be, since valid creditor claims must be satisfied before any payments are made to beneficiaries.
Debts Could Remain Unpaid
What happens if no probate is filed and the decedent has outstanding debts?
During probate, a decedent’s creditors are notified about administration, which, in turn, gives them the opportunity to file creditor claims to try to get repaid for any outstanding debts the decedent owed.
If it appears that no probate may be opened or that probate may be opened too late, several outcomes are possible. The creditor could open probate themselves, which would result in the creditor wielding control over the estate instead of whom the decedent had intended to control it. Or, if probate is opened late, creditors may be provided additional time to file their creditor claims, which could result in administration being prolonged.
The other matter of concern when debts remain unpaid is the estate accruing interest. The more interest an estate accrues, the less beneficiaries are likely to receive from the estate.
Assets Could Depreciate
While liquid assets may not be an issue, other types of estate assets (e.g., real properties, motor vehicles, furniture) could actively be depreciating with every day that probate remains unopened.
For example, a real property that remains unoccupied is essentially losing the estate income, because that property could potentially be sold or leased, but instead it is collecting dust. The property could also require regular maintenance, which likely isn’t being arranged if no one has opened probate.
When assets depreciate, the persons being affected are the beneficiaries/heirs, who may not receive as large of an inheritance as they would have received had probate been timely filed.
Estate Could Accrue Ongoing Expenses
Something else that could affect the estate’s bottom line is if the decedent had ongoing expenses that have not been stopped.
Suppose the decedent had been a member of an expensive country club that is continuing to take its fees directly from the decedent’s bank account. Without probate, it’s possible no one would come to learn about this expense, leading to the country club proceeding with its regular withdrawals.
Over time, these types of ongoing expenses can add up, and beneficiaries could be deprived of their full inheritances as a result.
Executor Could Face Financial Liabilities
What happens if an estate is not settled, but the appointed executor is delaying performing their executor duties?
While an executor nominee who fails to open probate cannot be held liable for any financial losses suffered by an estate since they have not been formally appointed to the role, an executor appointee can be held liable.
Suppose the appointed executor fails to distribute assets to beneficiaries, even though all the other steps of the probate process have been completed. If properties the beneficiaries stand to inherit depreciate in the meantime, beneficiaries could hold the executor personally liable for their negligence (which is a form of executor misconduct).
That said, if an executor had been acting in good faith, but the estate still suffered financial losses, they generally couldn’t be held liable for any losses the estate incurred.
FAQs
We understand how complicated probate can be to understand, which is why we’ve addressed some additional questions below. Remember, if you don’t find the answers you’re looking for in our FAQs, our talented team of probate attorneys would be more than willing to assist you.
What happens if an intestate estate is not probated?
When someone dies without a will, they leave behind what is referred to in law as an intestate estate. Intestate estates must be distributed to the decedent’s heirs in accordance with the laws of intestate succession.
Like the estates of decedents who died with a will, intestate estates must also be probated if they are valued at $184,500 or higher. Remember, the small estate limit can change from year to year, so before making a determination that you are dealing with a small estate, check the most recent small estate limit by clicking here.
The consequences of not probating an intestate estate are essentially the same as the consequences of not probating an estate of a decedent who died with a will.
Is executing a will without probate possible?
Yes, executing a will without probate is possible if the estate in question is worth less than $184,500. You can review the options provided in the section on alternatives to probate to determine which of the simplified probate procedures may work in your situation.
What happens if you don’t probate a will but distribute assets anyway?
If probate has not been filed, then assets cannot legally be transferred from the estate to beneficiaries/heirs.
If assets are handed out to beneficiaries/heirs anyway, then they may have to eventually be returned to the estate. Suppose a decedent’s creditors were to file creditor claims and those assets were needed to satisfy the claims. Because valid creditor claims supersede distributions to beneficiaries, those assets would likely need to be returned.
Additionally, if you were the one to unlawfully hand out assets without probating them, you could be held personally liable for any damage caused by your negligence.
What happens if the executor of a will does nothing?
As we mentioned earlier, the executor nominee is technically entitled to do nothing if they have yet to be formally appointed to the role.
However, if an executor proceeds to do nothing after being appointed, they could be held personally liable for covering any financial losses suffered by the estate as a result of their inaction.
Are you still waiting on probate to be filed? We can help.
It can be frustrating to wait on an executor to get the ball rolling on the probate process. Luckily, we know just what to do when an executor refuses to act and can help you get the ball rolling on probate yourself.
Your inheritance is what’s at stake when no probate is filed, so don’t wait on an irresponsible executor to do the right thing. Call us to learn about your options in such a situation. Schedule your free consultation today.
