Probate Lawyer Sacramento, CA
When someone dies with a will, a person or professional entity should be named to serve as the executor. The executor has a duty to ensure all debts have been paid and any remaining assets are distributed to the beneficiaries as intended.
Many wills are written are years several years before the death of the testator. As soon as the testator dies, the executor should file the will in court, with the help of a lawyer, to begin the probate process. However, this is not always so easy. It is possible for the executor to have died first, and the will never changed, or for the executor to decide that they don’t want to role. In either situation, the will is left unfiled.
The executor of a will is not legally required to perform their duties, even if they promise to do so. However, this does not mean that the executor can ignore a will by placing it in a drawer to forget about it. Nearly all states have laws that require a person who is in possession of an original will to deposit it at the county courthouse nearest to the place of which the deceased lived and died. This should be done between 30 days and 3 months, depending on the laws of the state.
Failure to File for Probate
If the executor fails to file the will for probate within the time limits, serious consequences can result. Although failure to file is not illegal, and will not result in criminal charges, most states do allow anyone affected by this decision to file a lawsuit against the executor.
It is possible for criminal charges to be filed when the executor fails to take a will to probate because they intended to conceal the will for their own financial gain. An example might be when a great aunt, with no family other than a grandson, decided to give her entire estate to a charity rather than her only family member, and he did not file the will. Under the laws of intestate, the grandon (assuming no will existed) would inherit his great aunt’s estate.However, because there actually was a will, the grandson could face charges.
Unpaid Bills and Debts
When someone dies, there is a good chance that they will have unpaid debts. By filing a fill for probate, the creditor has a limited time to make a claim against the estate. Usually this is four months from the date of which the executor is officially approved. If the creditor files a claim after the deadline, they will likely be unable to recover the debt. If probate is not opened, the creditor typically has one year to make a claim against the estate.
It it relatively common for a will to go unfiled when the estate is considered to be insolvent. This means that there is more debt than money or value in assets. Typically, no one will be legally obligated to pay the debts or maintain communication with creditors. Sometimes, in this situation, the best thing to do is to file the will and no open probate. You can talk with a probate lawyer about this during a free consultation.
A Will with No Value
Probate is not always necessary. In fact, if a will was left with nothing of value or because all valuable assets were put into a joint account or trust, probate may not be necessary. It is important to remember that filing a will and opening probate is different.