Being appointed the executor of a person's estate is a big-time responsibility. You are being asked to execute on a person the state plan has told to you through their will. A will is a deceased person's best thought out and most direct way of telling someone else how they would like to have their property and assets distributed or pond they're passing. Before a person passes away the will has no legal significance. However, once the person passes away your job as executor comes to the forefront.
They will most likely have to go through the probate court for proper administration. Unless the person is a very small estate or has no property at all it is probably wise to go through probate. This is since you do not want to distribute assets under a will and then find now that the person has creditors that are owed money. Those creditors could potentially come back and attempt to regain any property that has been distributed to others that should have gone to the creditor first period all this creates a mess for you as the executor and any of the beneficiaries who have already received property.
Another circumstance that comes into play is if you suddenly become aware of the enormous responsibility of acting as an executor and instead choose to speed the process up by skipping probate altogether. When the person asks you to be their executor you quickly agreed without knowing much about what it means to act as an executor. However, you eventually learned what kind of commitment it takes to execute the will and to send the will through probate. Having learned all the responsibilities you quickly determined that this was not for you and instead chose to try and distribute property after their passing as quickly as possible and then move on to the next area of your life.
However, I think this would be a major mistake for you to do and can oftentimes lead to heartache for the deceased person's family, beneficiaries, and even yourself. What you thought was a good way for you to avoid the time-consuming process of probate ended up as a major issue down the line for the deceased person’s estate and you. In today's blog post from the Law Office of Bryan Fagan, we are going to talk about what kind of problems could arise if you chose not to probate a will when acting as an executor. Of the many consequences associated with drafting or will and naming you as executor the deceased person probably did not envision a scenario where you would not follow through on their wishes due to having not probated the will. Here are some of the consequences that may become apparent soon after not probating a will.
Consequences of not probating a will
If the deceased person had any assets or debts at the time of their passing, then not probating a will can have significant consequences both for their estate and for you on a personal level. The only legal way to transfer the assets of a deceased person is to go through probate. If, as the executor, you choose not to go through the probate process then the deceased person's assets that are titled in their name cannot be passed along. This would include items like the deceased person's house and vehicle. Registrations will no longer be current, taxes most likely cannot be paid and these items cannot be sold. Without the deceased person's consent or signature, you will be stuck in a difficult situation where those items remain in limbo. The estate for the deceased person will incur taxes and other fees associated with maintaining the property in their name. Think of things like property taxes, car registrations, and insurance premiums on vehicles. Unless you choose to pay those bills personally, they will remain unpaid and there will be consequences for this person's estate. When and if you ever get these issues sorted out creditors in the government will be able to take money out of the estate before anything can be distributed to beneficiaries.
Aside from any of these issues that we have been discussing today, there are also creditors to be concerned with when it comes to probating a will. Many people only consider the aspects of a will where the property can be distributed according to the terms of the will. However, we also know that a person is plenty capable of having creditors. Even though it is less pleasant to have to deal with that credit error than with the potential beneficiary under a will that still does not mean you can disregard the rights of creditors. Trust me when I say if your creditor becomes aware of your deceased person has passed, he or she will investigate the matter and determine whether they can intercede into your affairs and stop you from distributing property before they are paid.
Another aspect of this discussion is that you made be personally held liable or at fault for any damages incurred as the result of not probating a will. For example, if you know that you're supposed to probate the will and you do not do it then you can personally be held liable for any expenses that are incurred by your deceased person's estate. The deceased person's beneficiaries may also be able to file suit against you on these grounds if they are harmed because you fail to probate a will. Finally, in this is an extreme example, you may be held criminally liable if you intended to not probate the will to benefit yourself financially.
Let's say that your mother had a world that expressed her interest in leaving all her assets to your cousin. This is something that you knew and was included in your mother's will. Your mother had a well-drafted that was otherwise valid left in the top drawer of her desk. If you were the only person to know about the will but you did not tell anyone else about it a probate court could conceivably award you or your siblings, the lion's share of her property upon her passing. Because you withheld information about the will you could be charged with a crime in Texas.
What is a good rundown of what can happen if you do not probate a person's will properly?
As we mentioned earlier going through probate is the only legal way to transfer assets to a person's beneficiaries. If you attempt to transfer the assets listed in the will to the beneficiaries without going through probate you are not following the legal process that is required of you to do so in most situations. The primary reason for this is that there may be creditors who have rights to property that you are neglecting to include in the process. This can leave the estate wide open to future legal actions in costs associated with your having not probated the will.
Next, the deceased person's estate can continue to incur expenses granny assets that are not legally transferred out of their name into another person. While it may be fairly simple to transfer a grandfather clock or an autographed football to a beneficiary without going through probate the same cannot be said for items that are titled in the name of the deceased person. These are typically expensive and valuable items such as homes and vehicles. While you can transfer physical ownership of the vehicles and homes to the beneficiaries those people will not hold legal title because they will still be in the name of the deceased person. He must go through probate to complete the process of distributing valuable and physically large assets like these.
I once again feel the need to mention that creditors have rights after a person passes away. Do not underestimate how diligent or dogged a creditor can be to protect their rights under a will. Of course, this person will not mention creditors in their will. By the same token, he or she may not have been mentioned to you that they have any creditors. However, it is your responsibility to seek to determine if there are any creditors out there that can potentially benefit from the property included in a person's estate.
All the while, any errors made, or time wasted in properly probating a will can result in expenses or loss of value and property for the I-stated deceased person or their heirs. Imagine a real estate investment that could not be properly cared for while the will is held up in probate. The potential beneficiaries may be losing money due to the delay in having the property transferred to them. These folks may be able to pursue a case against you for having delayed the process unnecessarily.
Finally, if you chose to purposely withhold a will from probate to benefit you or anyone else from a financial perspective you can be criminally prosecuted for having done so. Just because you think you can get away with something doesn't mean that you should. Things like this have a way of coming back to bite people in the backside if you know what I mean. Rather than trying to act deceitfully think about the person whose estate you oversee. The person trusted you a great deal to follow their wishes. Even if that means hurting yourself financially.
Answering important questions about the probate process
I hope that by reading today's blog post you come to understand that not going through probate is a bad idea. With that said, if you have a probate case to oversee as executor then you should be as prepared as possible before engaging in the process. For that reason, I would like to conclude today's blog post with some tips and answered questions on how to best oversee a Texas probate case.
A common question that I receive is whether the executor of a will must file the last will. The answer to that question would be yes once the person has passed away. You should file the will with the probate court. It may not be necessary to go through probate depending upon the size of your estate or if they had no assets or debts. However, it is probably better to be safe than sorry especially if you did not know the person's situation very well. Even if the person has no assets or had transferred all their assets to a living trust then you should still file the will and inform the court that there are no assets to distribute.
Why go through probate? I think you have seen the answer to this question already presented in today's blog post. There are a lot of consequences in play for you and the person's estate, not to mention their potential beneficiaries if you fail to probate a will. However, there is an answer to this question that has to do with the specific legal importance of having filed the will. Settling a deceased person's estate means being able to pay off creditors and transfer assets to beneficiaries. Without having gone through probate he will not be able to do so legally. Additionally, we have already talked about how expenses and taxes will be continually incurred by the estate if you fail to probate the will properly.
What is the probate process like? The first step that you would take as an executor of a person's will would be to file a petition to probate. The probate court would then open a case. The next step would be to file the deceased person's will into then wait for the court to accept the will and appoint you formally as the executor of the will. If a loved one passes away without it will you may still go through the probate process. You could be appointed in that case as the administrator of an estate. From that point forward probate hearings can be scheduled, and any beneficiaries or heirs can't be notified of the proceedings.
Going through probate allows for any potential heirs, beneficiaries, or other interested parties the opportunity to contest the will. For example, someone could argue that the will was not properly drafted, is invalid, was created under duress, or otherwise is invalid. The probate court's job will be to establish whether the will is valid. Usually, this is done by asking the witnesses to the persons who will testify or otherwise provide evidence that the will is a diversion that the person witnessed previously.
If the court believes that the deceased person's will is invalid, then their assets would pass 2 their ears under the intestacy laws of Texas. Dying intestate means that you die without a will. Without a will to determine how the property for the diseased person will be divided a court will follow the intestacy laws of Texas and divide property that way. The surviving spouse, if any of the deceased person as well as their children and grandchildren stands to inherit the lion's share of the property.
Next, creditors of the deceased person will be notified and given a certain period to claim the estate. The probate court will inventory and appraise the deceased person's property including Combs, vehicles, bank accounts, and things of this nature. Some property of the deceased person does not have to go through probate to be distributed. These would include brokerage accounts, life insurance proceeds as well as retirement accounts. These assets would transfer directly to the beneficiary as stated in the documents for that financial account.
Before any property can be divided to heirs are beneficiaries, any creditors would need to be paid. Tax returns and things of this nature will be paid as well, and assets may need to be sold to pay those bills. He was the executor of managing all these transactions and ensuring that it is done promptly. Finally, once all debts are paid you can ask the court for permission to distribute assets to the beneficiaries. This can be a complicated process and as you have seen you stand to incur some degree of liability if mistakes are made. As a result, it is recommended that you consult with experienced probate in estate planning attorney to know what your responsibilities are and to be able to proceed in a fashion that protects the rights of the deceased person to the state and the potential heirs or beneficiaries.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed probate and estate planning attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas probate and estate planning law as well as about how your family circumstances may be impacted by the filing of a probate case.
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