Question 1

IS THERE A PENALTY FOR NOT PROBATING A WILL?

Accepted Answer

Although there is no official penalty for not probating a will failing to do so may result in severe consequences in some cases.  If you don’t probate a will within four years after someone passes away, that will usually become invalid. You lose your opportunity to have the will probated, which can lead to really harsh consequences. For example, I had a client come to me two weeks before the four-year period was up. My client had been raised by her aunt from birth as an only child but was never legally adopted.  Had we not rushed to probate the will before the 4-year statute of limitations, the consequences would have been devastating. The will left everything to her, which included highly valuable mineral interests in West Texas. Without a will, not only would she not receive her full share of her inheritance, but she would also she would have had to track down 15 of her cousins to let them know that they were all 1/15th heirs under the Texas intestate code.  It would have skyrocketed the legal fees, and tied up the assets for years in the probate system. That is just one example of why it’s so important to get a will before someone passes away and call a probate attorney to get it probated.

Question 2

WHO IS ELIGIBLE TO CONTEST A WILL OR AN ESTATE?

Accepted Answer

Anyone who could potentially be an heir or a beneficiary of an estate is eligible to contest a will. You usually hire an attorney and go in front of a judge to probate the will, so it’s pretty easy for one of the unhappy heirs to just show up to court and start causing problems.  I had one probate case where a woman showed up to the probate hearing and claimed to be the common-law spouse. She didn’t have to spend a dime, and she wound up costing the family thousands in added legal fees and months of delays because we had to prove that she did not meet the legal standards of a common-law wife.

Question 3

WHAT IS PROBATE LITIGATION

Accepted Answer

Probate litigation happens when someone has passed away and we are going through probate. Usually, an heir or a beneficiary is unhappy, so they decide to contest the will or claim common law marriage. Most of the time, an argument is made that the person who passed away did not have the mental capacity to write the will or that they were subject to undue influence from someone else.  Another commonly litigated issue is a runaway executor. I currently have a case concerning a 7 figure estate that has been going through probate for years. There is a will and it’s very simple. My client has a terminal illness and cannot even afford to pay for his own medical care because the executor has refused to make any distributions from the estate. The executor is paying himself thousands of dollars every year to manage the estate and not distributing anything to the heirs. My client needs access to those funds, so I am trying to force the issue and make the executor either do his job or get him removed, so my client can get access to his inheritance.  Probate litigation happens when someone is not doing what they are supposed to and we need to bring in the lawyers to litigate. It is very expensive. Trials cost tens of thousands of dollars or more and, unfortunately, it happens a lot. Many of my estate planning clients choose a revocable living trust-based estate plan in order to avoid having to go through probate.

Question 4

WHAT HAPPENS IF YOU NEVER GO TO PROBATE?

Accepted Answer

If Probate is necessary but never established, beneficiaries will not receive their inheritance or assets. The assets of the deceased person will be held by the state and frozen as there are no legal beneficiaries of the assets. During this time no one will have the legal authority to access, transfer or sell the items.  Assets that could be frozen can include but are not limited to:  Accessing bank accounts or closing accounts Selling or transferring property Cashing in investments Due to this, it is imperative for individuals to find out if probate is required after someone has passed to avoid begin placed in legal binds that could have been avoided.

Question 5

WHY WOULD A WILL NOT BE PROBATED?

Accepted Answer

The most common reason for a will to not be probated is if the court has determined that the will is invalid. An invalid will can result in a court case. During this case, the will, will be disputed, and if it is approved by the court Probate will be granted.  Reasons why a will could be invalidated include but are not limited to:  The will submitted is not the last will of the deceased Improper execution of the will Undue influence Fraudulent inducement Lack of testamentary capacity

Understanding What Happens If A Will Is Not Probated?

What Happens If You Never go to Probate?

Consequences of Not Probating a Will

When Probate is Exempted

Alternatives to Probate

See if You Qualify for Probate with Our Questionnaire

Related Blogs