Consequences of Not Probating a Will

  • Clifford M. Cohen,
  •   Estate Planning
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If you’ve been named executor of someone’s estate, unless you resign, following the decedent’s death, you must submit the will to the court and initiate the probate process. But what happens if you don’t?  

If the deceased possessed property or incurred debts, the consequences of failing to probate a will can be quite severe, both for the estate and for you personally. Probate is the only legal procedure for transferring the assets of a deceased person. Without going thourgh probate, titled assets such as homes and automobiles will remain in the deceased’s name in perpetuity. 

Because the owner of the assets is deceased and cannot sign or consent to a transfer, you  will not be able to sell assets.  In order to keep mortgages or registrations current, you will need to pay from your own personal funds. As a result, the estate will almost certainly incur ongoing expenses, such as property taxes, insurance premiums, and vehicle registration. 

In addition, — unless the decdent provided a named beneficiary — bank accounts or investments held in the decdent’s name alone will not pass to heirs and instead could eventually be transferred to the state.  Also, going through the probte process gives creditors a limited time to file claims against the estate. If a probate has not be filed, creditors may continue to pursue claims against the estate until paid. 

Finally, if you are aware that you are required to probate the will but fail to do so, you may be held personally liable for the estate’s resulting expenses and any financial impact on the deceased’s heirs. There may even be jail time involved; withholding a will from the courts for financial gain is generally considered a crime. For instance, suppose your mother’s will specifies that she wishes to leave all of her property to your third cousin. If the courts are unaware of this due to their lack of access to the will, they will almost certainly award her assets to you as the next of kin. Withholding or destroying the will intentionally in order to inherit your mother’s money (against her wishes) would be a criminal offense.


Consequences of Not Probating a Will

To answer the question, what happens if the executor fails to probate the will, the following is a summary of what may occur:

  • The deceased’s assets will not be legally transferred to heirs.
  • The estate may continue to incur expenses for those assets, such as property taxes and insurance premiums.
  • Creditors can continue to pursue payment for the deceased’s debts.
  • The executor or anyone in possession of the signed could be held personally liable for excess expenses by the estate or its heirs.
  • The executor or anyone in possession of the signed will could be criminally prosecuted if he or she does not file the will due to personal gain. 

How the Law Offices of Clifford M. Cohen Can Help

Estate planning is a process that every Maryland resident should pursue. Unfortunately, however, many people see estate planning as unnecessary and put it off until critically ill or nearing death. Although creating a plan, even during a crisis, is better than no plan at all, waiting until a tragedy strikes is never wise and is almost always less effective than beginning early. Not only is earlier planning less stressful, but it’s also likely to be more comprehensive as it plans for lifetime occurrences as well as after death. So act now and contact a seasoned estate planning attorney, and rest assured knowing that you and your family are prepared for whatever life-changing event may occur.

At the Law Offices of Clifford M. Cohen we design customized estate plans, unique to each of our clients. There is no set template and one size does not fit all. f you are unsure of what all should be in your estate plan, we can provide guidance through in-depth one-on-one conversations. Simply express your concerns, and we can make you aware of the documentation needed to ensure that it does not become an issue, but our involvement doesn’t stop there. We are fully invested in your future and will serve as your counsel throughout the estate planning process and beyond. Contact us today to learn more about how we can help in your estate planning.