If a will isn’t probated after the death of the estate owner—regardless of the reason—there can be severe consequences. Let’s go through them in this article, tackling the important question of “what happens if a will is not filed?”.
5 Potential Consequences of Not Filing a Will
State probate laws require the personal representative of the estate or the person with the original will to submit it at the probate court within 10 to 90 days after the estate owner’s death (In Colorado, it’s 10 days). Here are five consequences if this doesn’t happen:
- The executor gets sued
- Asset ownership is not transferred
- Intestacy law is applied
- The will becomes invalid
- Some assets go unclaimed
The Executor Could Be Sued or Charged
If a will isn’t filed with the probate court on time, the executor—the person responsible for filing the will—could face civil or criminal charges depending on state law. For example, Colorado Revised Statute § 15-11-516 imposes civil liability on any person failing to lodge a will with the court, and Georgia Code § 53-5-5 states that the person withholding a will could be fined and imprisoned until they deliver it.
The heirs of the estate may also sue the executor for the items or assets they were set to but couldn’t collect. Depending on the state, creditors of the deceased person might also have claims against the executor named in the will.
Plus, the executor could face criminal charges if they concealed the will for financial gain, depending on the state.
Asset Ownership Won’t Be Transferred
When a will isn’t filed, any assets in the testator’s name will not be transferred to the beneficiaries.
If this goes on for a long period, the titled assets could run up taxes, fines, and collections penalties, which could be difficult to pay. The same is true for non-titled assets. For real estate, the failure to pay property taxes can result in loss of the property through tax lien sales.
Intestacy Law May Be Applied
If the testator’s will is not filed in time or at all, their estate maybe treated under intestacy laws. This means the court will divide the estate among surviving relatives according to a set order, which may not respect the deceased’s wishes.
The application of intestacy law may also mean that family members or friends who were supposed to get assets won’t get any. This can lead to disagreements among the beneficiaries and legal challenges down the line.
The Will May Become Invalid
If a will isn’t submitted to the probate court within a decade of a testator’s death, the court may not grant testamentary letters that validate the will, depending on the state.
For example, in Tennessee, probate courts may not validate wills if they’re older than a decade. In contrast, you can file a will even decades after the testator’s death in Colorado or Wyoming. Keep in mind, though, that the original will is generally required, so extended periods of time might cause the will to go missing, complicating probate.
Some Assets May Go Unclaimed
Aside from mentioning who should get what, a will also lists the addresses of all of the assets belonging to the deceased person. Without one, finding and transferring the titles of all the assets may become difficult for the court or executor.
This can lead to financial losses for beneficiaries and may complicate the eventual transfer of assets—when or if they’re located—in the form of increased legal fees, credit claims, as well as unsettled debt, taxes, interest, and penalties.
When Do You Not Have to File a Will?
There are situations when a will doesn’t need to be filed. For example:
- Assets with named beneficiaries, like life insurance policies, retirement savings accounts, stock portfolios, and payable-on-death bank accounts may be transferred automatically. For life insurance, you need to give the insurance company only a copy of the deceased person’s death certificate to have them pay the beneficiary.
- When the testator jointly owned assets with another person and gave them the right of survivorship, the property would automatically be transferred to them
- Shared real property will be transferred to the spouse of the deceased in community property states
- Assets in trusts will pass directly to the beneficiaries because they won’t be part of the estate
- When the testator leaves a “small estate,” then there may be no need to file a will. However, this depends on the state. For example, in Colorado, the wills of estates with a net value below $82,000 (in 2024) don’t have to be filed.
Aside from the above, you won’t have to file a will if the deceased did not leave any assets.
Speak With an Experienced Estate Lawyer at Brich Grove Legal
Filing a will can be complicated, hectic, and expensive—even if your loved one did as much as they could to make the process easier. This is why we recommend talking to an estate planning attorney to help with the process.
At Birch Grove Legal, we help you ensure that the assets you are entitled to are protected from loss. Contact us today to safeguard your rights.
