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September 26, 2020


What Happens If a Will Is Not Probated?

The last will and testament document with a pen ready for signing.

You only have so much time to probate a will after someone dies, and if you fail to do so, the will becomes invalid. Not only do you lose the chance to probate that will, which includes settling the estate and distributing assets, but if you were the executor of that estate, you open yourself up to numerous liability issues – including an instance where surviving family members can (and most likely will) file a lawsuit against you.

Know Your State Filing Laws

Every state is unique, and New York is no different. Even if you are listed as the executor, you are not forced to do so. Therefore, instead of allowing a will to expire, petition for an alternate or find someone else willing to probate the will for you. If you do accept your duties as the executor of the estate, then you need to file with the courts to begin the process. You only have a few weeks post-death to do this. While it is true the will expires in a few years, filing several months after someone has died creates further legal issues.

If you are not sure how long you have to file the paperwork and begin the process, or you feel you are not up to the task, contact a local estate attorney immediately. The penalties for ignoring and allowing a will to expire are much worse than the cost to hire an attorney and seek guidance.

The Penalties to You, the Executor, for Failing to Fulfill Your Duties

If you fail to file a will with the court in time, there will be legal consequences. Failure is not automatically a criminal act, but it is a civil one. You will likely face a lawsuit by anyone who was harmed from your failure to file. That means all of the beneficiaries who would have benefited financially can now hold you financially liable for their losses because you failed to fulfill their duties. They can possibly sue you for the amount of inheritance lost, and it will be a hard lawsuit to fight because you did not file the paperwork and there are only a handful of defenses.

There Is the Possibility of Criminal Charges as Well

While civil penalties are the most likely scenario, you could face criminal liability, especially if your failure to file was intentional for financial gain. For example, you are also a beneficiary of the will. You decided to purposely ignore probate so that the will would expire, and you could keep all of the assets for yourself.

This level of fraud opens the door to criminal charges, and you could face jail time for doing so.

Creditors Still Have the Right to Seek Payment

The entire purpose of probating an estate is to ensure all creditors are paid and the estate’s remaining assets are taken care of. When you open probate, this decreases the amount of time the creditor has to file their claim against the estate for repayment. When probate is not opened, however, the creditor can file a formal lawsuit against you and the estate seeking compensation.

What If Probate Was Not Legally Necessary?

There are instances where someone has a will, but you do not have to file probate legally. If there is nothing left, or the party had nothing of value, then you may not need to file and start the probate proceeding. Even when it feels unnecessary, you should do your due diligence. Make sure there are no assets that the deceased may have forgotten about, make sure that you are following all of New York state’s laws, and consult with an estate attorney.

An attorney can help review the will to determine if it truly can avoid probate. It is best to always consult a legal professional. While you might think it qualifies, there are nuances in New York estate laws that you do not want to assume anything on.

Furthermore, these laws change frequently, and information available free to you online could be outdated – giving you false information about whether or not you are fulfilling your duties as the executor.

Also, realize that there is a difference between opening probate and just filing a will. While probate may be unnecessary, you still must file the will. That will remain open, which allows any new assets to be discovered and added so that they are distributed to the right beneficiaries.

Still Not Sure What to Do? Now Is the Best Time to Speak to an Attorney in New York

Whether you are an executor of the estate or you are a beneficiary dealing with an executor that refuses to begin probate, you want to consult with an attorney. The laws in New York are complicated, and there are specific timeframes and deadlines that must be considered whether you are fighting a will that has not been filed or debating whether to file at all.

Do not wait to contact an attorney. As stated before, you only have a few months, and waiting too long could open the door to civil and possibly criminal penalties.

The Law Office of Andrew M. Lamkin, P.C., has helped family members and executors navigate the complexities of New York’s estate laws. Right now, we understand that not everyone can come into the office and meet, but that is okay. You can still meet with our team just by calling and scheduling a free case evaluation. We will do your evaluation over teleconference so that you still get that face-to-face confidence without leaving your home.

To get started, schedule a no-obligation case evaluation regarding your loved one’s will or an estate that you are in charge of administering. You can also request more information online by completing the online contact form.

Time is limited when it comes to administering an estate, so do not wait. The sooner you speak to an attorney, the sooner you can rest assured you are doing everything correctly under the law.