Probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the person’s assets, paying their final bills and taxes, and distributing the remainder of the estate to their rightful beneficiaries. When a person dies with a will, they typically name a person to serve as their executor. The executor is responsible for making sure that the deceased’s debts are paid and that any remaining money or property is distributed according to their wishes. It’s not uncommon for wills to be written years before a person die. Once death occurs, the executor should file the will in court to begin the probate process. But it’s not always that simple. Sometimes an executor dies first. Or an executor can decide they no longer want the job. So, what happens if you do not probate a will?
State Probate Filing Laws
You aren’t required to serve as the executor of a will, even if you made a promise to the deceased that you would. This doesn’t mean you can stick the deceased’s will in a drawer and forget about it. Most state require any person in possession of an original signed will to deposit it at the court of the county where the deceased resided. Filing deadlines vary by state, range from 30 days to 3 months.
Probate Penalties to the Personal Representative
Failing to file a will within the time required by the state can have serious consequences. Although failure to file by itself is not a criminal violation, in most states this subjects the person to a lawsuit by someone who was financially hurt by the failure to file. For example, in Utah the law says that anyone who willfully failed to file a will with the court is liable to any injured party for the damages resulting from the violation. Criminal liability could occur if the failure to file a will is coupled with intent to conceal the existence of the will for financial gain. For example, your father decided to leave his entire estate to a favorite charity and left you nothing. You decide not to file his will. The laws of intestate succession allow you to inherit your father’s entire estate. In this instance, a failure to file the will would likely expose you to criminal liability.
Probate Creditors’ Claims and Insolvent Estates
When people die, it’s common to have unpaid bills. Opening probate cuts short the amount of time a creditor has to claim against the estate. A creditor must file their claim within four months from the date an executor or personal representative is officially appointed. A creditor’s claim may be rejected by the executor if it is filed late. When probate is not opened, a creditor has one year to file suit against the estate. It is common for a will not to get filed when the deceased’s estate is insolvent, meaning there are more bills that money. In general, relatives and friends have no legal obligation to do anything to pay the debts, to communicate with creditors, or open a probate. So, the simplest solution is to file the will and walk away from the problem by not opening probate.
Transferring Title to Property In Probate
Imagine if a friend passed away leaving a prized classic car in her will. Your friends had few other assets. Since the estate is small, it’s likely exempt from probate. Remember, probate is processes that transfer legal title of property from the estate of the person who has died to their beneficiaries. Fortunately for you, most states have a streamline processes for transferring title in small estates. The process is generally referred to as “transfer by affidavit” and may be used to collect personal property of the deceased without probate. State law will set the maximum fair market value of the deceased’s entire estate that can pass in this manner. You will still likely need to produce the will to show your legal right to inherit the car.
A Will May Not Require Probate
Probate isn’t always necessary. People frequently don’t bother to file a will if there is no apparent need to open probate because the person left nothing of the value or because all items of value were put into a trust, a joint account or some other form designed to avoid probate. Remember, there is a difference between filing a will and opening probate. Even probate seems unnecessary, the will must be filed. It’s not that unusual to discover property belonging to the deceased years after their death. And some states, allow probate to be opened decades after a person has passed. In such an instance, the will would allow the newly discovered assets to be distributed. Each state has specific laws in place to determine what’s required to probate an estate. These laws are included in the estate’s “probate codes,” as well as laws for “intestate succession,” when someone dies without a will. In cases where there is no will, probate is still required to pay the decedent’s final bills and distribute their estate.
The steps involved are generally very similar, regardless of whether a will exists; even though laws governing probate can vary by state.
Authenticating the Last Will and Testament
Most states have laws in place that require anyone who is in possession of the deceased’s will to file it with the probate court as soon as is reasonably possible. An application or petition to open probate of the estate is usually done at the same time. Sometimes it’s necessary to file the death certificate as well, along with the will and the petition. Completing and submitting the petition doesn’t have to be a daunting challenge. Many state courts provide forms for this. If the decedent left a will, the probate judge will confirm it is valid. This may involve a court hearing, and notice of the hearing must be given to all the beneficiaries listed in the will as well as the heirs, those who would inherit by law if no will exist. The hearing gives all concerned an opportunity to object to the will being admitted for probate, maybe because it’s not drafted properly or because someone is in possession of a more recent will. Someone might also object to the appointment of the executor nominated in the will to handle the estate. To determine if the submitted will is the real deal, the court relies on witnesses. Many wills include so-called “self-proving affidavits” in which the decedent and witnesses sign an affidavit at the same time the will is signed and witnessed. This is good enough for the court. Lacking this, however, one or more of the will’s witnesses might be required to sign a sworn statement or testify in court that they watched the decedent sign the will and that the will in question is indeed the one they saw signed.
Appointing the Executor or a Personal Representative
The judge will appoint an executor as well, also sometimes called a personal representative or administrator. This individual will oversee the probate process and settle the estate. The decedent’s choice for an executor is typically included in the will. The court will appoint next of kin if they didn’t leave a will—typically the surviving spouse or an adult child. This individual isn’t obligated to serve. They can decline and the court will then appoint someone else. The appointed executor will receive “letters testamentary” from the court—a fancy, legal way of saying they’ll receive documentation allowing them to act and enter into transactions on behalf of the estate. This documentation is sometimes referred to as “letters of authority” or “letters of administration.”
It might be necessary for the executor to post bond before they can accept the letters and act for the estate, although some wills include provisions stating this isn’t necessary. Bond acts as an insurance policy that will kick in to reimburse the estate in the event the executor commits some grievous error, either intentionally or unintentionally—that financially damages the estate, and, by extension, its beneficiaries. Beneficiaries can elect to unanimously reject the bond requirement in some states, but it’s an ironclad rule in others, particularly if the executor ends up being someone other than the individual nominated in the will or if they live out of state.
Locating the Decedent’s Assets
The executor’s first task involves locating and taking possession of all the decedent’s assets so they can protect them during the probate process. This can involve a fair bit of time and sleuthing. Some people own assets they’ve told no one about, even their spouses, and these assets might not be delineated in their wills. The executor must hunt for any hidden assets, typically through a review of insurance policies, tax returns, and other documentation. In the case of real estate, the executor is not expected to move into the residence or the building and remain there throughout the probate process to “protect” it. But they must ensure property taxes are paid, insurance is kept current, and any mortgage payments are made to prevent foreclosure so the property isn’t lost. The executor might literally take possession of other assets, however, such as collectibles or even vehicles, placing them in a safe location. They’ll collect all statements and other documentation concerning bank and investment accounts, as well as stocks and bonds.
Determining Date of Death Values
Date of death values for the decedent’s assets must be determined and this is generally accomplished through account statements and appraisals. The court will appoint appraisers in some states, but in others, the executor can choose someone. Many states require that the executor submit a written report to the court, listing everything the decedent owned along with each asset’s value, as well as a notation as to how that value was arrived at.
Identifying and Notifying Creditors
The decedent’s creditors must be identified and notified of the death. Most states require the executor to publish notice of the death in a local newspaper to alert unknown creditors. Creditors typically have a limited period of time after receiving the notice to make claims against the estate for any money owed. The exact time period can vary by state. The executor can reject claims if they have reason to believe they’re not valid. The creditor might then petition the court to have a probate judge decide whether the claim should be paid.
Paying the Decedent’s Debts
Valid creditor claims are then paid. The executor will use estate funds to pay all the decedent’s debts and final bills, including those that might have been incurred during the final illness.
Preparing and Filing Tax Returns
The executor will file the decedent’s final personal income tax returns for the year they died. They’ll determine if the estate is liable for any estate taxes, and, if so, file these tax returns as well. Any taxes due are also paid from estate funds. This can sometimes require liquidating assets to raise the money. Estate taxes are usually due within nine months of the decedent’s date of death.
Distributing the Estate
When all these steps have been completed, the executor can petition the court for permission to distribute what is left of the decedent’s assets to the beneficiaries named in the will. This usually requires the court’s permission, which is typically only granted after the executor has submitted a complete accounting of every financial transaction they’ve engaged in throughout the probate process. Some states allow the estate’s beneficiaries to collectively waive this accounting requirement if they’re all in agreement that it’s not necessary. Otherwise, the executor will have to list and explain each and every expense paid and all income earned by the estate. Some states provide forms to make this process a little easier. If the will includes bequests to minors, the executor might also be responsible for setting up a trust to accept possession of these bequests because minors can’t own their own property. In other cases and with adult beneficiaries, deeds and other transfer documents must be drawn up and filed with the appropriate state or county officials to finalize the bequests.
An intestate estate is one where the decedent did not leave a valid will—either they never made one or the will is not accepted as valid by the probate court due to an error in the document or because an heir successfully contested it. The most significant difference is that in the absence of a will that makes their wishes known, the decedent’s property will pass to the closest relatives in an order determined by state law.
Common Assets That Go Through Probate
Basically, probate is necessary only for property that was:
• owned solely in the name of the deceased person—for example, real estate or a car titled in that person’s name alone, or
• a share of property owned as “tenants in common”—for example, the deceased person’s interest in a warehouse owned with his brother as an investment.
This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.
Assets That Don’t Need to Go Through Probate
Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary.
Here are kinds of assets that don’t need to go through probate:
• Retirement accounts: IRAs or 401(k)s, for example; for which a beneficiary was named
• Life insurance proceeds (unless the estate is named as beneficiary, which is rare)
• Property held in a living trust
• Funds in a payable-on-death (POD) bank account
• Securities registered in transfer-on-death (TOD) form
• U.S. savings bonds registered in payable-on-death form
• Co-owned U.S. savings bonds
• Real estate subject to a valid transfer-on-death deed (allowed only in some states)
• Pension plan distributions
• Wages, salary, or commissions (up to a certain amount) due the deceased person
• Property held in joint tenancy with right of survivorship
• Property owned as tenants by the entirety with a spouse (not all states have this form of ownership)
• Property held in community property with right of survivorship (allowed only in some community property states)
• Cars or boats registered in transfer-on-death form (allowed only in some states)
• Vehicles that go to immediate family members under state law
• Household goods and other items that go to immediate family members under state law
When you need to probate a will in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506