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What Happens if a Will is not Filed in Florida?

Mar 15, 2022 | Last Will & Testament Legal Blogs | Elder Law P.A

Filing a will is not the same as going through the probate process. The court can always appoint an executor for the probate process if the decedent did not create a will. Probate may not be necessary if the decedent had no assets or limited assets, but you must still file and let the court know there were no assets. If there are significant assets, however, probate is necessary whether there is a will or not.

Many people make a will before death. In the will, they usually name the individual who will serve as the executor. This individual is then responsible for ensuring that the decedent’s debts are paid off and that any remaining property or assets are then distributed to the beneficiaries as stated in the will. In most cases, a will is written years before death. Once the person dies, the executor is supposed to file the will in court to initiate the probate process, which is a requirement in Florida. What happens if a will is not filed in Florida? Sometimes, even the best-laid plans can go awry. In some cases, the executor may have died, he/she may decide that they no longer want the job of executor, or he/she may have forgotten about the will. So, what happens if a will is not filed?

Florida Laws

To be selected as an executor of a will is purely a voluntary endeavor. No one can be forced to become an executor. Once you decide to take on the responsibility as an executor of a will, however, you cannot simply forget about it. What if a will is not filed in Florida? In almost all states, including Florida, the person in the possession of the original will has to file it with the local county clerk where the decedent last resided. The filing deadlines vary from state to state, ranging from 10 days to 3 months. In Florida, the will should be filed with the local court within 10 days of the decedent’s death.

What are the Penalties for Not Filing a Will?

What happens if a will is not filed? Failing to file a will within the required timeframe in Florida can have serious consequences. While failure to file a will is not a criminal offense, in Florida, it can lead to a lawsuit by the individual(s) who might be financially damaged as a result of failing to file. For example, if one beneficiary was waiting for his or her inheritance to pay off his home or car, he/she can file a lawsuit against the executor for failure to file. Perhaps their debt grows larger as more time passes, and perhaps the individual has had to file for bankruptcy. Further, if the executor fails to file the will with an intent to hide the existence of the will for personal financial gain, he could incur criminal liability. For example, your mother decides to leave her entire estate to her sister and nothing to you. You are the executor of the will and decide not to file the will. The laws of intestate succession then permit you to inherit your mother’s estate. In this scenario, failure to file a will can lead to criminal liability.

Why is Probate Necessary?

Probate is the process of settling a decedent’s estate after his/her death. This means paying off any creditors and transferring assets to the beneficiary(ies).

1. Transfer of Title

If the decedent’s assets included a car, real estate, investments, and there was no beneficiary named, then without probate these assets cannot be transferred to anyone. Consider that your friend passed away and left you his Harley Davidson motorbike, priced at $30K. Because the estate is not big, it is most probably exempt from probate. To transfer a property title to your name, however, probate is necessary. This process allows the legal transfer of property title from the estate of the decedent to the beneficiaries. If the estate doesn’t amount to a lot in terms of dollar value, the process of transfer may be able to be done via “transfer by affidavit.” This process is frequently used to transfer smaller assets of the deceased without probate. However, first, the state will determine the fair market value of the estate for it to be passed in this manner. You still have to produce a will showing that you are the beneficiary of the motorbike. Without a will, you have little hope of receiving the asset.

2. Heirs Can Sue

If the decedent has assets but has no will, these assets cannot be transferred to the beneficiaries without the probate process, which determines the priority of inheritance according to the state’s succession rules. If probate is not filed, then the heirs cannot legally receive any assets and can sue the executor.

3. Disputed Will

Sometimes the will may be disputed or there may be a question of fraud or the signature on the will may not be valid; this can only be resolved through the probate process.

4. Claims by Creditors

Sometimes when people die, they leave behind many unpaid bills. Filing a will and opening probate allows the creditors to file a claim against the estate and recoup their losses. Creditors must file their claims within a specified amount of time. In Florida, the latest a creditor’s claim can be filed is 24 months from the date of the decedent’s death. In some cases, an earlier deadline may apply. A late claim by a creditor can be rejected by the executor. However, if probate has not been opened, the creditor usually has 12 months to file suit against the estate. Many times, a will is not filed because the decedent’s estate owes more money than the net worth of the estate. Legally, family members and friends are under no obligation to pay the creditor. However, to avoid hassles, the easiest solution is to file the will with the court and walk away. Because the will has been filed, there are no penalties for the executor and the creditors can sort out the money owed within the court system.

Do All Wills Require Probate?

What happens if a will is not filed in Florida? It is important to understand that while probate may not take place, filing a will is a legal requirement in Florida. There have been many instances where assets belonging to the decedent weren’t discovered until years later. Some states do permit probate to be opened back up but that is not an ideal situation. In these scenarios, if there is a will, it would permit the distribution of the assets to the heirs in a timely manner.

How to Avoid Probate

One of the ways to avoid probate is to put the assets in a trust or have a joint account. If these steps are not taken ahead of time, however, then probate will take place after death, and it can be an expensive and time-consuming affair.

Conclusion

What happens if a will is not filed? If you are confused about probate and wills, consult with a lawyer who is knowledgeable about the processes in the State of Florida. He or she can educate and guide you through the process. The representatives of Elder Law are experienced in wills, probates, trusts, and many other related facets of Florida laws. Call 1-561-933-5074 today to get the answers and assistance you need.

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