CONSEQUENCES OF NOT PROBATING A WILL
Many people ask us “what happens if I don’t probate the will.” I have to say, this question distresses me. Why not probate the will? Every day we counsel families distraught because their loved one died without a will.
So, you have a will. THAT IS GREAT NEWS! But a will is only valid if admitted to probate by a Court. The Court procedures determine if it is the last, valid will, and thus the legal will writing the rules for the estate. The will you possess has no legal meaning or impact until the Court admits it to probate. And, you have four years to get it done.
If you possess the original will and you are the executor, you are supposed to offer the will for probate, if you believe it to be a valid will. But, it isn’t a crime not to probate a will. It just usually is not a smart decision.
If there is property you can’t obtain — bank accounts, mutual funds, mineral interests — the logic of probate is simple. It is the key that unlocks those funds.
So, usually the question is in this context. You are the widow, widower, son, daughter, or partner of the decedent living in the house. The house is the only asset of the loved one not in your name and you are living there and nobody is bothering you. What good does probate do me? Simply put, that house is not yours until the will is probated. Yes, the tax appraisal district will put your name in their system and mail you a tax bill, but that isn’t title. You can pay the taxes forever, but that isn’t title. You can live in the house for 30 years, but that isn’t title. So, if you don’t take care of it, when you try to sell or borrow against the property, a title company will say “do probate.” And if that is more than four years from death, you are going to pay more money and possibly not ever be able to probate the will.
It is also important for a spouse to know that the deceased spouse’s share of the house does NOT automatically go to you. So, the will may be the only way to get the house in your name. There is nothing automatic that transfers a deceased spouse’s property to the surviving spouse — in fact, quite the contrary.
For example, if you are married but the decedent had children from a prior relationship, even if the spouse leaves the house to you in the will, if you don’t probate the will, the children become part or full owners of the house.
Please read about probate here.