QUESTION
Is it a legal offense to not have a will probated, when an executor has been appointed over an estate and other people are named in the will?
Asked on May 12th, 2013 on Estate Planning - California
17 ANSWERS
2 Awards
Not sure what you mean be "legal offense". There is no criminal element to the failure, and it is rare for there to be any civil penalty unless there is fraud or breach of fiduciary duty involved, but if the executor has not been appointed, they are simply nominated, not obligated. If you have an interest in the estate, bring a petition for probate to do it yourself based upon lack of action on the part of the named executor. See a probate attorney for assistance. Probate fees are paid from the estate, not you personally, so you have nothing to lose by proceeding.
Answered on May 16th, 2013 at 2:30 AM
Admiralty / Maritime Attorney serving Monrovia, CA
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The Law Office of Nathan Wagner
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No, it is not a crime (to the best of my knowledge) for an executor to fail to have a will probated. But, if you are one of the people named as a beneficiary under the will, you can start probate proceedings after a certain period of time. You do not have to wait for the person named as executor to do it.
Answered on May 15th, 2013 at 7:40 AM
No, no one has a duty to probate a Will.
Answered on May 15th, 2013 at 7:30 AM
Theodore W. Robinson
No, it is not legal if there is real property that has to be transferred out of the deceased' name or there are people who are named in the Will. In effect, if the person who is holding the Will withholds it from being filed, then it can be considered a felony. Good luck.
Answered on May 15th, 2013 at 7:17 AM
Probate Attorney serving Palatine, IL
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Law Offices of Robert H. Glorch
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No. Many estates are not probated. It depends primarily on the value of estate assets. Sometimes there are no assets. No assets = No probate.
Answered on May 15th, 2013 at 4:31 AM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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The personal representative is not appointed until the Court appoints him or her; after that, failing to move the probate forward is a breach of fiduciary duty. But there is no duty to probate the will just because testator named you as personal representative. It would be polite to notify the next alternate PR named in the will that you do not plan to serve as PR, so that person can get things started.
Answered on May 15th, 2013 at 4:30 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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It could be, especially if you swear there is no will and there is one. In the probate case, if you have a copy of a will, you can submit that to the court for it to determine whether there is a valid will. Talk with an attorney about the best way to proceed.
Answered on May 15th, 2013 at 1:25 AM
If an executor does not probate a will that should be, it is a breach of fiduciary duty and he/she can be removed from the position. You should consult a probate attorney to review the facts and advise you about petitioning the court.
Answered on May 14th, 2013 at 10:10 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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If the executor name in the will does not want to act, that's okay. Somebody else can petition the court.
Answered on May 14th, 2013 at 10:06 PM
Estate Planning Attorney serving Suwanee, GA
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Law Office of Glenn M. Wall
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There is no law in Georgia requiring that a Will be probated and there is no legal time limit to when a Will may be probated. It is, however, unlawful for someone in possession of a decedent's Will not to at least file it with the probate court.
Answered on May 14th, 2013 at 9:46 PM
Employment Law Attorney serving Dana Point, CA
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Mains Law Office
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In California, it depends on the gross value of the estate. If it is under $150,000.00, then it is not mandatory to probate it. If it is over that amount, then it should go through probate. A beneficiary can require probate after receiving a copy of the will or when the will is lodged with the Court.
Answered on May 14th, 2013 at 9:44 PM
Thomas Edward Gates
While one is unlikely to go to jail for not probating a will, it permits others who were not identified as Executor to apply to the court to be appointed.
Answered on May 14th, 2013 at 9:38 PM
In Colorado, all Wills must be filed with the Court after the Will maker has died. However, not every Will requires probate. For example, if the Will maker only had a life insurance policy and named someone as beneficiary, then the insurance passes pursuant the beneficiary designation and the Will need not be probated.
Answered on May 14th, 2013 at 9:34 PM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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Not sure what you mean by a legal offense. Unless the executor renounces, they have the duty to open and probate the Estate.
Answered on May 14th, 2013 at 9:34 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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I'm afraid I do not fully understand your question, generally if there is a valid will that is what the executor is to administer, and if they do not do so they are breaching their fiduciary relationship.
Answered on May 14th, 2013 at 8:36 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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More information is needed. Is the Will in the possession of the Personal Representative? The person who has possession of the Will is supposed to file it with the probate court as soon as reasonably possible.
Answered on May 14th, 2013 at 8:22 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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The failure to have a will probated, if there are assets to be distributed to various persons, could be a breach of the statutory rules governing probate administration. You are advised to seek the counsel of probate legal counsel to assist you in this matter, immediately, as waste of assets could occur, in violation of the deceased intent.
Answered on May 14th, 2013 at 5:41 AM