If a person passes away with a will in place, the decedent will name someone—like a spouse or child—to serve as their personal representative. The personal representative bears the responsibility of closing out the estate, distributing assets, and paying creditors.
Having a will requires the personal representative to probate it in court. However, a personal representative may not have known that a will existed or simply does not want to face the legal process.
Florida probate laws require a will to be probated. If the personal representative is uncertain about his or her ability to meet these requirements, he or she should speak with a Florida probate lawyer to help them through it.
Penalties to the Personal Representative for Not Probating a Will
Not probating a will within the statutory deadline has significant consequences. While it is not a criminal act, parties who incur damage—such as an heir—can file a civil lawsuit against the personal representative for willfully failing to file a will in court.
It is possible for the non-probate of a will to result in criminal charges if it is in conjunction with concealment for fraudulent reasons. For example, if a parent donates all of her assets to a charity and leaves a scorned child with nothing, and the child chooses not to probate the will as revenge, then it is possible that the personal representative can be criminally charged.
Creditors’ Claims and Insolvent Estates
It is not uncommon for people to pass away with unpaid bills. Filing a probate matter shortens the timeframe by which a creditor has to file a claim against the estate. If the will is not probated within the statutory deadlines, then it can file a civil lawsuit against the decedent’s estate.
It is essential to understand that family members are not liable for the debts that another solely incurred under an insolvent estate. Failing to probate a will does not solve the problem. In fact, it can create more.
Transferring Title to Property
Aside from paying debts, probate is meant to transfer property and assets to heirs. For individuals who have no will and very few assets, it is unlikely that the estate will have to go through probate.
Some families are in a tight spot and attempt to side-step the probate process by taking over the utilities and paying property taxes. However, it is crucial to understand that even though it is possible to use the property without probate, the heirs will never legally own it without having it go through probate.
Other problems crop up as a result of this occurrence, including:
- Not able to sell the property
- Cannot mortgage the property
- Cannot evict tenants if renting it
There are specific circumstances that allow you to transfer ownership on small estates, like a car, using an affidavit transfer. However, personal representatives should discuss their eligibility to do so by speaking with a Florida probate lawyer.
Contact a Florida Probate Lawyer for Help
Not only is dealing with the death of a loved one heartbreaking but probating his or her estate presents a new set of challenges during a highly emotional time. Keep in mind that you are required to hire a Florida probate lawyer to probate a will in general.