What Happens If An Executor Fails To File Probate?

As a family deals with the death of a loved one, numerous issues arise, requiring immediate attention. The burden can become overwhelming, and it can be easy to put off some responsibilities.

However, if there are assets like a house or accounts, probate may be a necessary process for managing the estate. And where there is a Will, an executor has a duty to act. Failure to file on time can create complications. And though there is no set time when an executor must start a probate, failure to act in a timely manner may result in the court appointing a different personal representative.

The results of neglecting to file probate

Probate resolves the distribution of the decedent’s estate and takes care of paying taxes and debts. California dictates that the estate representative must complete the probate process within a year of the death. While this rule is not strictly enforced, especially where the court system itself may be slowing down the process, the legislature has made it clear that probates are expected to be opened and administered expeditiously.

Even if nobody objects to an executor’s non-action, after the decedent dies, assets are essentially frozen. This means no one can access the estate cash or otherwise act to preserve estate property, like changing the locks on a vacant house or paying taxes.

Without handling probate, the estate cannot close debts. Without closing out the creditor’s period, beneficiaries could later become liable for the decedent’s debts, especially if they receive the decedent’s money (like from a pay on death account) without the creditors’ claims having been addressed.

Ultimately, if a named executor fails to act in a timely manner, that person could fact personal liability to the extent that the delay may have caused financial damages.

Tips for avoiding filing late for probate

Various issues can get in the way of an executor filing for probate, though the person intends to do so. And many executors find the paperwork alone for starting a probate to be daunting. If you are named as the executor of a will, it is in your best interest to call an experienced probate attorney to help you with the process. A probate attorney should only be paid out of the probate estate, and not out of the pocket of the would be executor. While many attorneys ask executors to front personal funds to pay costs, Radiance Probate & Estate Law, Inc., will cover those costs and get reimbursed by the estate.