Elderly man working on his estate plan

What Happens if You Don’t File a Probate in California?

If a friend or loved one dies with only a will, or with no estate plan at all, you may be required to file a probate petition before you can take control or possession of that person’s assets. Failing to do so, and taking or distributing the assets without the proper procedures, may lead to penalties and damages that far exceed any benefit you may receive.

If you take control of an estate that is required to go through probate in California, but you do not file the probate case, you could face severe civil and criminal consequences. Not every estate has to go through probate, but most non-lawyers do not understand the factors that determine which estates must be probated.

With so much at stake, you will want to talk to a California estate planning attorney about whether your loved one’s estate has to go through probate and to learn what happens if you don’t file a probate in California. Keep in mind that you may not have to personally do the work of administering an estate.  The law provides that you may hire an attorney to do the job for you, and the fees will come out of the estate, not out of your pocket.

Here are some consequences of not filing a petition to probate a will:

Creditors Will Have Extra Time to File Claims Against the Estate

One benefit of timely filing a probate petition is that the filing may establish deadlines for when the decedent’s creditors can bring claims against the estate.  Creditors generally have just four months to file claims after the court appoints an executor of the will or an administrator of the estate. If you do not open a probate case, the clock does not start ticking right away, and the creditors may have more time to pursue their claims.

You Cannot Open a Bank Account to Pay the Debts of the Estate

Typically, after you file the will with the court, you ask the court to issue letters of administration that give you legal authority to do things like pay the expenses and debts of the estate and get access to the decedent’s accounts and other assets. 

A bank is highly unlikely to give you permission to open an account in the name of the estate to pay claims for the debts of your deceased loved one. Those claims can remain in limbo for some time. Also, creditors may go after you personally for your failure to notify them of the death of your close relative.

You Cannot Transfer the Estate Assets to the Heirs and Beneficiaries

In cases where a probate is legally required, the only way to legally transfer property to the named beneficiaries is to file the will or open the probate with the court and go through the probate process. Just as debts can remain in limbo, the real estate, cars, and other property of the decedent may remain in the decedent’s name until legally transferred.

You Could Be Personally Liable for Expenses of the Estate and Financial Harm to the Heirs

If you take possession of the estate assets but fail to follow through with the proper procedures, then you may find yourself liable for any damages that result.  For example, the failure to pay the expenses of the estate, or to timely transfer assets to the beneficiaries, could cause harm to the estate and to the beneficiaries. Being unable to close out the estate can create increased expenses due to the delay. You might have to pay those expenses personally if your failure to file the will or pursue the probate process caused the delays and increased expenses.

The value of some assets might go down because of the delay in getting those items transferred to their rightful recipients. Those beneficiaries could seek to hold you responsible for the financial hardship you caused.

The Other Heirs Could Have the Court Remove You as Executor or Administrator

If you do not follow California law concerning your fiduciary duties as executor or administrator of an estate, the other beneficiaries could file papers in court and ask a judge to remove you from that role. You might have to provide an accounting of your actions to the judge.

You Could Face Criminal Charges if You Fail to Comply with Required Probate Procedures

In some cases, if a person wrongfully takes possession of the estate assets, or intentionally conceals a will for their own benefit, they can face criminal charges for those actions. Considering the inconvenience and other potential consequences of failing to take a will through probate, or to open a probate where there is no will, it is usually best to talk to a California estate planning attorney about your legal obligations. Please reach out to our office today for a free consultation. We are here to help.