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Faizan
Wills give you the freedom to dispose of your property according to your wishes after death. However, the document itself only provides instructions, while a court process is often required to effectively change ownership of your property; this process is known as probate. Most states have rules regarding when it is necessary and how soon after death a will must be filed with the court.
Probate Assets
Probate is typically only necessary if the deceased person passes away owning probate assets. Non-probate assets, including life insurance benefits, property held in a trust, and payable-on-death accounts, pass automatically at death and do not require a legal proceeding to change title. Further, many states do not require probate if the total amount of probate property is small, such as less than $20,000.
Filing Requirement
States often require that a will be submitted to probate even if it seems the estate is small or that no probate assets were left behind. The person who generally files the will is the executor, who is named in the document; however, anyone who has a copy of the will can submit it to the court. The executor has other legal responsibilities, including notifying beneficiaries of the death and finding and collecting the deceased person's property. If, after an investigation, the court determines that probate is necessary, the executor is responsible for valuing the property, notifying and paying creditors, filing tax returns and transferring any remaining assets to the beneficiaries.
Failure to File
The practical effect of an executor's failure to file a will is that probate property remains titled in the name of the deceased person. Although a beneficiary may be given possession of the property on the basis of the will's provisions, he may be unable to sell or transfer the asset in the future. Further, some states will not honor the terms of a will if it is not timely filed, such as within a year of death. Instead, when probate is finally opened, the property would pass according to state intestacy laws, which may conflict with the terms of the will.
Administrator Liability
Failure to file a will can also create liabilities for the executor if he is the only one with access to the will and intentionally does not submit it for probate in a timely manner. Under state law, executors owe a duty to the estate and to the will beneficiaries. Part of this duty is to act diligently and in a timely manner in exercising their responsibilities. If the executor fails to submit a will to probate without a good reason, the heirs will most likely have a claim against the executor for any financial loss that they incurred as a result.
Probate AssetsProbate is typically only necessary if the deceased person passes away owning probate assets. Non-probate assets, including life insurance benefits, property held in a trust, and payable-on-death accounts, pass automatically at death and do not require a legal proceeding to change title. Further, many states do not require probate if the total amount of probate property is small, such as less than $20,000.
Filing Requirement
States often require that a will be submitted to probate even if it seems the estate is small or that no probate assets were left behind. The person who generally files the will is the executor, who is named in the document; however, anyone who has a copy of the will can submit it to the court. The executor has other legal responsibilities, including notifying beneficiaries of the death and finding and collecting the deceased person's property. If, after an investigation, the court determines that probate is necessary, the executor is responsible for valuing the property, notifying and paying creditors, filing tax returns and transferring any remaining assets to the beneficiaries.
Failure to File
The practical effect of an executor's failure to file a will is that probate property remains titled in the name of the deceased person. Although a beneficiary may be given possession of the property on the basis of the will's provisions, he may be unable to sell or transfer the asset in the future. Further, some states will not honor the terms of a will if it is not timely filed, such as within a year of death. Instead, when probate is finally opened, the property would pass according to state intestacy laws, which may conflict with the terms of the will.
Administrator Liability
Failure to file a will can also create liabilities for the executor if he is the only one with access to the will and intentionally does not submit it for probate in a timely manner. Under state law, executors owe a duty to the estate and to the will beneficiaries. Part of this duty is to act diligently and in a timely manner in exercising their responsibilities. If the executor fails to submit a will to probate without a good reason, the heirs will most likely have a claim against the executor for any financial loss that they incurred as a result.
Posted in: Estate Laws
