What happens if you do not probate a will after a death depends on the status of the deceased’s estate. If they put their assets in a trust, for example, those assets do not have to be probated.
A standard will, however, does not avoid probate, and failure to take appropriate steps could mean that the deceased’s final wishes are never honored.
Our Orlando wills, trusts, and probate lawyers can assist with all tasks related to probate, including filing the necessary paperwork to begin the process and representing you in court.
Who Has to Probate a Will After Someone Dies?
Typically, the deceased will have named an executor, or a person they trust to ensure that:
- The will is submitted to the appropriate court
- Outstanding debts and taxes are paid
- Assets are distributed according to the will’s provisions
In short, the executor—also sometimes called a personal representative—is responsible for settling the deceased’s estate and ensuring that everyone gets the money and other assets they are entitled to under state law and/or the terms of the will.
If the decedent did not name an executor, or if the executor is unable to fulfill their responsibility (e.g., they passed away and the deceased never named a new executor), the court will appoint someone.
If you have any questions or concerns about who the executor is or how to properly probate a will, our attorneys can provide all of the information you need to move forward with the probate process.
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How Do You Probate a Will?
The executor can start the process by submitting the decedent’s will and a Petition for Administration to the appropriate court. This is usually the circuit court presiding over the county where the decedent lived. If the deceased was in Orlando, for example, you would file with the Orange County Clerk of the Circuit Court.
The court will then decide whether or not the will is valid and, if it is, give the executor permission to continue with the administration of the will. This includes:
- Notifying the deceased’s creditors so they have a chance to file a claim against the estate
- Determining the nature and value of the assets that remain after the creditors have taken their share
- Identifying and notifying all beneficiaries so they can claim their share of the inheritance
There may be deadlines you have to obey at each of these stages. For example, you might have to start probate within a certain amount of time after the decedent’s passing. Creditors are also entitled to a set period of time in which to file claims before the executor can move on to the next step.
This process can be very complicated, so do not hesitate to reach out and seek legal representation if you are feeling overwhelmed.
Is Probate Necessary in All Cases?
There are ways you can ensure your family does not have to go through probate. As previously stated, establishing a trust allows your family to bypass probate and simply take possession of the assets you wanted them to have.
Outside of exceptions like this, probate is always necessary, whether or not the decedent left a valid will.
Do You Still Need a Will if You Set Up a Trust?
That depends on what instructions you want to leave for your family and beneficiaries. If you are solely concerned about the distribution of assets, trusts alone may suit your needs.
Most people, however, have other concerns, such as appointing guardians for dependents or designating a power of attorney. Trusts do not cover such topics, so you need a will and possibly other legal documents to ensure your wishes are clear and enforceable in these areas.
What Are the Consequences of Failing to Probate a Will?
Under Florida law, going through probate is the only way for heirs and beneficiaries to establish ownership over the decedent’s property. Failing to probate a will could therefore make it difficult or impossible for these beneficiaries to claim their inheritance, leading to frustration and financial troubles.
The deceased wrote a will because they knew what they wanted to happen to their estate after they passed, and they wanted to ensure those wishes were honored. It is important to probate a will to make sure your loved one’s affairs are settled in the way they wanted them to be.
How Long Does it Take to Probate a Will?
The length of the probate process depends on a variety of factors, so it is not possible to predict ahead of time how long any given case will take.
Factors that could influence how long probate takes include:
- The presence or absence of a will: Without a will, probate can take much longer and be much more difficult.
- The size of the estate: If the estate is small enough, you might be able to file for summary administration, which can shorten the process. The more assets the deceased had, the longer it may take to settle.
- Disagreements between beneficiaries: Even if there is a will, beneficiaries might try to contest it, claiming the will is invalid or outdated.
You may not be able to prevent all delays and disputes by leaving behind a clear, legally valid will. However, such a document can reduce confusion and help to streamline the probate process. Your loved ones could benefit from this guidance when it is time to probate your will.
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Our Lawyers Help Families Like Yours Through Probate
Bogin, Munns & Munns is here for Florida and here for you. Call now for a consultation with a member of our team. We can explain more about what happens if you do not probate a will after a death, and how our lawyers help families like yours through the probate process with as little stress as possible.
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