Losing a loved one is one of the most painful experiences you will go through in your life, and this difficult time becomes even more challenging if they died without establishing a comprehensive estate plan for their assets and property. Most people understand that creating a valid will is a crucial step in planning for the management of their estate after they pass away, but few realize that a will is usually subject to the probate process before the administrator of the estate can execute the terms it contains. If you have been named as the administrator of your loved one’s estate, you are likely wondering what responsibilities you are expected to fulfill and what consequences you will face if you fail to probate a will according to state guidelines.
Consult the following information to learn more about probating a will in California, then contact Quinn & Dworakowski, LLP today to discuss how we can guide you through the probate process. We can help you understand your role, explain the tasks you must complete to probate a will, and answer any questions you may have concerning the administration of the estate. Probating a will can be a confusing and intimidating prospect, but with expert legal representation and counsel, you can effectively navigate this process and reach an optimal resolution for your family.
What Happens If You Don’t Apply for Probate?
When your loved one created their will, they should have designated an administrator of their estate to be responsible for making sure their final wishes are carried out, including paying off any outstanding debts and distributing assets and property to their named beneficiaries. If you are in possession of their will when they die, you are legally obligated to file the will with the superior court in the county in which they lived within 30 days after their death. This involves bringing the will to the probate court clerk’s office, which will then file the will with the court and mail a copy of the will to the person named as administrator, or executor, of the estate.
You Cannot Transfer Property and Assets
Although failure to file a will within this time period is not considered a crime, it can result in serious consequences for you and for the estate. Probating a will is the only way to legally validate it and transfer the legal title of property to the named beneficiaries. Without opening probate, any assets titled in the decedent’s name, including real estate and vehicles, will remain in the decedent’s name for an indefinite period of time. This prevents you from selling them to pay off debts, distributing them to the beneficiaries, or keeping registration current. The estate will most likely continue to accrue ongoing expenses, such as property taxes and insurance premiums, and you may be held personally liable for these expenses and the financial impact to beneficiaries. You can become subject to a claim by the decedent’s beneficiaries or anyone else who suffers financial hardship due to your failure to file.
You Cannot Close the Estate’s Debts
Along with managing assets for beneficiaries, another important responsibility you have as administrator is to notify all potential creditors with claims against the estate that the person has died. If your loved one had unpaid financial obligations that must be taken care of after they pass away, initiating the probate process gives creditors four months after you were appointed to your position as administrator to file their claims. After they file a claim, you are responsible for either paying this debt or contesting it within 30 days. Once a claim is rejected, creditors have 90 days to file a civil claim in response or they lose the right to do so. Failure to open probate benefits creditors by allowing them to continue pursuing payment of the debts for up to one year.
You May Be Removed from Your Role
As the administrator of an estate, you have a fiduciary duty to put the interests of the estate and its beneficiaries first when making any decisions about preserving, distributing, or otherwise managing the estate. You are expected to act with honesty, fairness, and integrity, and carry out the decedent’s wishes in good faith. If the beneficiaries suspect that you have violated your fiduciary duty, such as hiding or mismanaging assets, failing to distribute them in a timely manner,stealing funds, or making poor investments, they can alert the court of this potential misconduct and petition a judge to take action against you. The judge may ask for a financial accounting of your actions, compel you to fulfill your duties, or even remove you from your position entirely and appoint someone else.
You May Be Criminally Prosecuted
Finally, if you failed to file the will and open probate because you are intentionally concealing the existence of the will for your own benefit, you can become criminally liable for the damages they suffer as a result of your violation. For example, if your mother creates a will that stipulates all of her property should be distributed to a local charity, but the court is unaware that her will exists, the laws of intestate succession (dying without a will) would position you to inherit the estate. In this case, your decision to not file the will is a direct result of your desire to achieve financial benefits from the estate against her wishes. This is considered a criminal violation and you are therefore subject to criminal prosecution.
Filing the Will Is Not the Same as Opening Probate
These are two separate steps. Lodging the original will with the court is required whether or not the estate will be probated. Opening probate is only necessary if the person left assets that cannot be transferred another way. Probate may not be needed at all if everything was held in a living trust or passes by beneficiary designation. Filing the will promptly still matters, because probate can be opened years later if additional assets are discovered.
Being named as executor does not obligate you to serve. If you are unable or unwilling to take on the role, you can decline, and the court will appoint someone else.
When a Small Estate Can Skip Formal Probate
California offers simplified procedures for smaller estates. If the estate qualifies, the people entitled to inherit can collect personal property with a sworn affidavit instead of opening a full probate. At least 40 days must have passed since the death. An estate planning attorney can tell you whether the estate qualifies and which procedure applies.
Frequently Asked Questions
Are Family Members Responsible for the Deceased Person’s Debts?
Generally, no. Debts are paid from the estate. If the estate does not have enough to cover them, relatives are not usually personally responsible unless they co-signed the debt or are otherwise legally liable for it.
What Happens to Taxes If Probate Is Never Opened?
The person’s final income taxes are still owed. If they go unpaid, the IRS can place a lien on estate property, which makes it harder to transfer or sell later.
How Can I Protect Myself as an Executor?
Know the deadlines that apply, starting with the 30 days to file the will. Have a backup plan if you cannot serve. Talk to a probate attorney early so that you understand your duties before problems arise.
Protect Your Loved One’s Estate (and Yourself)
If you have recently lost a loved one and are in possession of their will, it is absolutely imperative that you file the will within the statute of limitations to initiate the probate process. When you are named in the will as the administrator of the estate, you may be confused about your responsibilities or feel overwhelmed, but simply ignoring the will is not an option. Failure to file prevents beneficiaries from accessing their inheritance, allows creditors to continue pursuing claims against the estate, and can result in you being removed from your position or even criminally prosecuted if the court finds that you did so out of your own financial interest.
To ensure the effective resolution of your case, contact Quinn & Dworakowski, LLP today. We have represented clients throughout Southern California who are unsure about how to proceed with probating a will. We can inform you of your responsibilities, help you navigate the probate process, and give you the guidance and advice you need to successfully handle even the most difficult probate issues. By retaining the services of our firm, you will receive dedicated, attentive legal representation throughout every stage of the process to make sure the terms of the will are properly executed and you do not expose yourself to criminal liability.
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