In a straightforward scenario, after an individual passes away, the executor will be available to bring the will to probate court. This is how the validity of the will can be determined before the assets are distributed to the beneficiaries.

However, the process of bringing a will to probate won’t always be a simple one. Remember, in some cases, the will is written a number of years prior to an individual’s death. There’s certainly potential for this to lead to problems down the line.

For instance, what if the executor has also passed away by the time the will is set to enter probate court? Alternatively, what if the executor that the will designates is unable or unwilling to perform these duties? If any of these scenarios occur, there’s a chance that the will won’t proceed to probate court, as it was meant to. So, what then? If probate isn’t performed on a will, how can the asset distribution process proceed?

Filing Laws Vary by State

To start, it is important to note that no one is obligated to serve as the will’s executor, whether or not the deceased assigned them this job in the will. If the executor decides that they are unable or unwilling to serve as the executor, then they will not be legally required to do so. Of course, when this scenario occurs, the probate process is likely to be delayed or avoided.

That being said, it also isn’t possible for this individual (even if they don’t wish to serve as executor) to leave the will in a drawer, completely untouched. If someone is in possession of a will’s original copy, then they will often be required to bring the document to probate court, in whichever county the deceased individual resided.

Nonetheless, the legalities of this situation are dependent upon the state in which the executor resides. Filing deadlines can also vary from state to state and can range anywhere from thirty days to three months.

What Penalties Could a Personal Representative Face?

If someone fails to deposit a will to court in a timely manner, then it’s possible that they will be faced with penalties, and oftentimes, these consequences can be serious. Technically speaking, neglecting to file a will isn’t typically considered to be a criminal violation in and of itself. However, this certainly doesn’t mean that it’s ever wise to neglect to file the will.

If a particular individual is responsible for filing the will but fails to do so, they could face serious lawsuits by any parties that were financially harmed by the situation.

However, if the will isn’t filed because the individual is attempting to conceal its existence (generally for their own financial gain), this is the point at which criminal violations come into play.

Insolvent Estates & Creditors’ Claims

It is typical for individuals to pass away with unpaid bills, which will still need to be properly handled. Whenever the will is brought to probate court, however, creditors will be granted a shorter timeframe to enact a claim against the deceased’s estate.

From the date a personal representative or executor is officially appointed, any creditors to whom the deceased owes money will have four months to file a claim. If the creditor fails to file their claim in a timely fashion, then the executor has the right to deny this claim entirely. This is one of the reasons it is beneficial to begin the probate process early on rather than putting off bringing the will to probate court.

If the will isn’t taken to probate court, on the other hand, creditors will be granted a full year to make their claims against the deceased’s estate.

Sometimes, the deceased individual was in possession of an insolvent estate. Essentially, this means that they had more debt than money. Whenever this occurs, it isn’t uncommon for the designated executor to neglect to take the will to probate court. Ultimately, the members of the deceased’s family can’t be held legally responsible for any debts that were left unpaid, nor are they required to communicate with the deceased’s creditors.

By filing a will without taking it to probate, it’s easier for family members to avoid dealing with creditors altogether.

Do All Wills Require Probate?

As we just alluded to, it’s entirely possible for a will to be filed correctly without it proceeding to probate court. Sometimes, there simply isn’t a need for the executor to open probate. For instance, maybe the deceased didn’t leave behind any items of value. Or, if the deceased had created a trust prior to their death, it could also be possible to avoid probate court entirely.

Keep in mind that filing a will and undergoing probate aren’t synonymous tasks. Whether or not the executor plans to take the will to probate court, they are still obligated to file the will, even if this task feels pointless.

For instance, sometimes, property belonging to the deceased won’t be discovered until a number of years after their passing. In instances such as this, it is sometimes possible for probate to be opened whenever these additional assets are discovered. Some states will even allow probate to be enacted decades after the deceased’s passing, at which point the assets can be properly distributed. Due to scenarios such as this, it’s vital that the will was filed in a timely fashion, whether probate had initially occurred.

Sweeney Probate Law Understands Probate Court

Whenever you’re dealing with probate court, it’s essential to work with a legal team that understands the ins and outs of this process. If you’re a resident of Southern California, your go-to source for legal aid during probate is Sweeney Probate Law.

Don’t allow probate to be any more confusing or time-consuming than it truly needs to be. If you are in Orange County, Riverside, Long Beach, or San Bernardino, make sure to get in touch with Sweeney Probate Law as soon as possible. We have extensive experience dealing with probate court and strive to make the process more manageable for each of our clients. Remember, probate doesn’t need to be difficult.

To schedule a consultation with Sweeney Probate Law, simply reach out to us through our online contact form today.