What if the Executor Doesn’t Probate the Will?
What Does Probate for a Will Mean?
Have you wondered “what is a will and probate”? The word “probate” originated from the Latin word “probate” which means “to prove.” A will is a legal document that lets the court know who you want to have your belongings after you die.
When a will is probated, it means that the Court has determined (proved) that the will satisfies the requirements to be considered a valid will in the state and that it is, or can reasonably be concluded to be, the last will of the decedent.
It is important to note that a will is not necessary for an estate to go through probate.
Until this step is taken, the decedent’s assets cannot be distributed to the heirs.
What Are The Responsibilities of a Executor of a Will ?
The executor has a fiduciary responsibility to handle the estate for the benefit of the heirs. The first duty is to take control of the assets that are included in the estate and manage them properly. This includes safeguarding the assets and may include divesting the estate of risky investments. The executor must take reasonable actions to prevent theft and ensure that assets are properly insured. Monies owed to the estate must be collected. In short, the executor must secure, manage, and protect the estate’s assets.
As the executor takes control of the assets, an inventory should be made. Appraisals of real estate and other difficult to value assets should be obtained from qualified professional appraisers.
The executor is also responsible for notifying creditors of the death of the decedent. The executor can contest creditor claims that they do not believe are valid and must pay claims that are valid if the estate has the funds to do so. If not, the executor must sell assets, as needed to satisfy the claims of creditors and to facilitate the distribution of the estate. Although real estate can be distributed in kind, if there are multiple heirs, they may prefer to have the property sold and receive cash for their share.
Detailed records and accounting must be provided to the court before probate is completed. Receipts protect the executor from personal liability in their handling of the estate, so attention to detail is a critical skill.
The executor is also responsible for filing paperwork with the court and receiving the court’s approval to sell and distribute the estate according to the will, and approval of the executor’s and attorney’s fees.
The amount of time it takes to settle an estate varies considerably based on a number of variables including the size and complexity of the estate, challenges, difficulty of finding a buyer for the assets, and difficulty locating assets. In some cases, the estate cannot be closed because the decedent is the heir of another estate that has not yet been settled.
There are some hard deadlines in the estate process. The named executor must file a copy of the will with the Court within 30 days of learning that the decedent is dead. Failure to file the petition for Letters of Administration can disqualify the executor from being appointed.
If someone with a potential interest in the estate wants to contest the will, they must file their objection with the court within 120 days of the date the will is filed with the court.
Creditors must be notified of the decedent’s death. Once they receive notice, they have a certain time from submitting a claim. If they fail to submit a claim timely, they will be barred from making a later claim.
The inventory with appropriate appraisals must be filed within four months of the date the court issues the Letters of Administration or Letters Testamentary. Copies of the inventory and appraisal of assets must be served on all interested parties by the same deadline.
Consequences of Not Probating A Will
A named executor who fails to file the will can be held personally liable for losses that should have been avoided, such as theft of assets or investment losses.
Additionally, titled assets will remain in limbo with cloudy titles until the estate is probated.
If you are an heir to an estate and the executor does not file the will with the court, you can petition the court to be named as Administrator of the estate.
If you believe there are a will and a named executor who is failing to act, a Notice of Probate can be sent to the person you believe has the will which obligates them to provide a copy of the will. If they won’t produce the will, talk with a probate attorney for additional steps you can take.
When is Probate Not Necessary ?
There are a number of ways an estate can avoid probate. A fully funded living will transfer the assets to a trust that allows the estate to avoid probate.
If all the assets are titled so that ownership passes directly to heirs upon the death of the decedent, such as with a joint tenancy, survivorship community property, or payable-on-death (POD) accounts, there will be no reason to probate the estate.
If there are assets that exceed $20,000 that are not handled using methods that allow them to avoid probate, the estate needs to be probated.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.