What Happens if My Estate and Will are Not Probated?

By: Tough Law Firm, P.L.L.C. | Published 12/30/2020

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In a nutshell, not probating an estate is a really bad idea. In many cases, but alarmingly not all, there is usually a will that has been left by the person who has passed away detailing how the estate should be distributed. However, the probate process is the actual legal review and confirmation of the will in a court of law. If a will and its estate are not probated properly within the expected amount of time, that will can then become useless or invalid. When this occurs, the court can flat out decide how to distribute an estate to whomever it deems appropriate, including non-family and parties that were never mentioned in a will at all.

Statute of Limitations Vary
The time period of when probate has to occur varies from state to state. Each state has it’s own set of laws regarding property distribution, so there’s not a set standard across the country that is the same. This particular point is incredibly important for folks to remember, especially when they are dealing with an estate of a relative or family member in another state versus their own home. Further, states have different rules how non-probate or intestate cases are to be handled. Some, like Texas for example, split everything evenly between all identified living relatives. The legal fees alone in such a situation practically guarantee there is nothing left of the estate for the beneficiaries as the fees are also paid from the estate as well.

Simple Steps Help Avoid Big Headaches
The above said, a non-probated estate can be entirely avoided. By simply having a legal will on file that is completed, executed and notarized, half the battle is taken care of. Then second half is making sure there is an Executor who will make sure the estate and will are actually probated timely. These two steps can absolutely avoid a big nightmare otherwise. Can a solid will be contested? Yes. Any will can legally be challenged by anyone, so it’s not a perfect protection. But going without a will and without probate is much worse.

Probate challenges are usually rooted in an unhappy relative, however. The most common argument is that the will is invalid because the party had no real idea what they were approving in the last will executed. This second most common argument is that the estate’s Executor is stealing from the estate and using the will as cover.

Reduce Your Problems Proactively
Effective estate planning can reduce a number of problems that occur in the probate phase like those described above. People have lots of options ranging from basic wills to trusts to early distributions that are far easier to control than hoping for the best with just a will alone.

If you have a concern that your will won’t be executed as you expect or you’re dealing with a will and related estate right now but not sure how to proceed, give our offices a call. We would be glad to discuss your situation and provide a path forward in either scenario that protects your interests and avoid the minefields of a non-probated estate.

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