When someone writes a last will and testament, they usually leave a copy with the individual whom they’ve asked to handle their affairs when they die (this person is known as the executor, or personal representative). When the person who wrote the will (the testator) dies, the executor is required to file the will with the county probate court. The statute of limitations allows up to 2 years to probate a will, but most states have filing laws that require you to submit the will within 30 – 90 days of the testator’s death.
Note that an executor isn’t obligated to actually probate the will—their only legal responsibility is to submit the will to the county court. While most executors submit the will and petition for probate together, the executor doesn’t necessarily need to open probate. Once the will is filed, another family member can petition to probate the will.
With that understanding, that begs the question—what happens if you file a will but do not petition to open probate?
Assets that are not subject to probate will still transfer automatically upon death
Assets that have a contractual beneficiary do not need to pass through probate. When the owner dies, their financial institutions will transfer their assets to the beneficiaries listed on the account as soon as they receive a copy of the owner’s death certificate.
Where probate can take 4 – 6 months, the transfer of non-probate assets can wrap up in a matter of days—saving a significant amount of time and money. As such, it’s wise to position as many of your assets as possible to avoid probate. Of course, it’s too late to do this after the owner dies, so it’s important to make the proper arrangements and beneficiary designations ahead of time.
Assets that are not subject to probate include the following:
- Bank and brokerage accounts with a payable-on-death (POD) or transfer-on-death (TOD) beneficiary
- Real estate that’s owned as joint tenants or as tenants in the entirety
- Retirement accounts (IRA, 401k, etc.)
- Life insurance policies
Assets that are subject to probate cannot be transferred to the beneficiaries
Any assets that aren’t properly positioned to avoid probate will need a probate court’s authorization to transfer title of ownership. Assets that are legally subject to probate include the following:
- Personal possessions like vehicles, art, jewelry, collectibles, furniture, and guns
- Real estate owned as tenants in common
- Individual bank or brokerage accounts
In this case, failure to probate a will results in these assets being frozen in the decedent’s name, unable to pass to the intended beneficiaries named in the will. The financial institutions holding the assets will not release them to anyone but the authorized personal representative, nor will they transfer the assets directly to the beneficiaries. A beneficiary could take physical possession of the assets (e.g. move into the house, start paying the mortgage, drive the car, move the personal property to their house, etc.), but he or she would not legally own the assets.
As a caveat, assets that are normally subject to probate can avoid probate if they are owned by a trust. For example, if an individual transferred ownership of their house and personal possessions to a living trust, those assets would pass directly to the trust’s beneficiary when the owner dies.
Neglected assets will be subject to seizure and losses
When probate assets are not properly transferred through probate, they’re often neglected and subject to loss of fair market value. If nobody pays the home mortgage, the bank may foreclose on the house. The same goes for personal and recreational vehicles that are subject to personal loans—failure to pay the monthly loan payments will result in repossession. Cars that are left on the street may be vandalized, stolen, or towed. Unattended houses left in disrepair can deteriorate, resulting in blighted conditions that hurt the property’s resale value. Liquid assets like stocks and bonds are subject to losses without the watchful eye of a prudent investor.
All of these examples will result in a lower residual estate value that’s available to pay creditors and ultimately distribute to beneficiaries. As long as the executor filed the will they aren’t liable for these losses and damages. However, if the executor fails to file the will in a timely manner (30 – 90 days depending on the state), the executor may be held personally liable for the damages incurred by the beneficiaries.
The statute of limitations for creditor claims will be extended
When probate is opened, creditors have four months to file a claim against the decedent’s estate. Valid claims submitted after four months may still be honored under certain conditions, but most of the time they are invalidated due to the statute of limitations expiring. While the ethics of crossing your fingers and hoping legitimate creditors miss the window may be questionable, it’s certainly in the best interest of the estate to close the door on potential creditor claims before the assets are distributed to the beneficiaries. Failure to file a will and open probate extends the statute of limitations for creditors up to two years.
Any interested party—including creditors—can petition to open probate
Don’t think that avoiding probate means you won’t have to deal with the decedent’s creditors or beneficiaries. If the will isn’t filed in a timely manner, interested parties such as creditors and beneficiaries can petition to open probate on their own. The court will subpoena the will, and if the court finds that the executor intentionally concealed the will for personal financial gain, he or she may be subject to criminal charges. If the court cannot retrieve a copy of the will, probate will proceed according to the state’s intestacy laws as if the decedent didn’t write a will.
Exceptions for small estates
In the state of Arizona, small estates with less than $75,000 in personal property and less than $100,000 in real property are exempt from probate. Under these conditions, an executor can settle the decedent’s liabilities and distribute the property according to the will outside of probate. To do this, the executor will just need to submit a Non-Probate Affidavit. The executor will need to affirm their relationship with the decedent, list the value of the property, provide some general information about the decedent, itemize the decedent’s assets and liabilities, and attach a copy of the will. Once complete, submit the affidavit to the Superior Court of Arizona.