Families often experience a sense of urgency after a loved one dies and try to tie up loose ends as soon as possible. In an ideal world, finalizing the probate of the estate can bring closure to those left behind. However, it also puts a heavy burden on the executor’s shoulders, and the executor is often a grieving family member in their own right.
Jump ahead to these sections:
- Does a Will Ever Become Invalid After a Death?
- How Long Do You Have to File a Probate After a Death?
- What Happens If a Will Is Not Filed Through Probate Soon After a Death?
- What Can You Do if You Want to File a Probate Years Later?
- Tips for Probating a Will Months or Years After a Death
While there are many benefits to probating a will sooner rather than later, there is no need to worry about a will expiring or becoming invalid simply because it is old or several years have passed since the decedent’s death.
State probate laws call for the speedy deposit of any found wills, but that is to prevent the hiding or disposal of wills rather than a deadline for probating them. Properly executed wills retain their power until the testator revokes or replaces it.
Does a Will Ever Become Invalid After a Death?
Very few people look forward to a meeting with an estate planning lawyer, so a significant selling point of making a will is that it remains valid indefinitely. A testator executes, or puts into effect, a will by signing it. At that point, only a handful of events or scenarios can invalidate it.
Evidence of revocation or later-dated will
Testators can change their estate plans before they die by making a new will or revoking an old one. These events have to happen during the testator’s life, but it’s not uncommon for the executor or heirs to find proof of those actions only after their death. After all, announcing that you’ve written someone out of the will is rarely a good dinner conversation.
Most professionally drafted wills and even will templates available online include wording clarifying that the testator revokes previous wills. However, courts consider the most recent will to be the controlling one even without that language.
Testators can also simply destroy the original copy of the will when they want to revoke it. This especially happens when testators don’t want to delay the revocation of their old will until they can write another.
As a result, family members sometimes submit the version of the will they are familiar with to the probate court, only to find a new will or proof of revocation later on. Unfortunately, some descendants leave behind disorganized and confusing documents. Many executors find a will in a safe deposit box and submit it for probate only to find a later-dated will tucked away in a nightstand or desk drawer later on.
Court invalidation of a will
Whether or not a will is valid has become a rote plotline in soap operas and movies, and its prevalence in the media can leave the impression that courts invalidate the majority of wills. This is a misconception – the courts only invalidate wills in very few instances, the most common being undue influence and lack of capacity by the testator.
In these situations, someone interested in the matter can challenge the will in court. The court considers witness testimony and evidence to determine whether to invalidate the will.
People can change their will on a whim and make decisions their family members dislike, but the court cares about whether that person had legal capacity at the time they did it. For example, the court would likely invalidate a will if it determined that the testator had dementia when they wrote it.
How Long Do You Have to File a Probate After a Death?
For many reasons, the best practice is to promptly file probate after the death of a decedent, but that doesn’t mean you have to rush from the funeral to the courthouse. Most states require a certain number of days to pass, often around 10, from the decedent’s death before anyone can open a probate case.
That being said, both creditors and heirs benefit from the timely administration of the estate. The executor secures estate assets, and delaying probate often leads to the damage of estate assets. Abandoned homes and buildings degrade quickly, and vacant property can be at risk of theft or defacement.
As a result, state probate laws encourage the timely filing of probate through language in the probate codes indicating that no probate case may be initiated more than a certain number of years after the decedent’s death. Those laws then provide a list of exceptions that include reopening old cases and for the probate of estates that have no other probate proceedings in the state.
What Happens If a Will Is Not Filed Through Probate Soon After a Death?
State probate laws require that anyone with a decedent’s will in their possession take that will to the probate court within a certain number of days after the decedent’s death or of becoming aware of the will. The number of days varies based on the state. For example, California requires that the will be deposited within thirty days, but Colorado only allows for ten days.
These laws encourage the timely presentation and probate of wills and give the courts grounds for punishing anyone who withholds a will for nefarious reasons. They aren’t meant to punish grieving family members who have to go through boxes of belongings to find a will; instead, they aim to prevent people from hiding or withholding wills.
What Can You Do if You Want to File a Probate Years Later?
Whether you are filing probate soon after death or years later, the process of starting a new probate case is likely to be the same because wills remain valid over time.
Anytime you open a new probate case, follow your state’s procedures and probate code, regardless of the time since death. As noted above, state laws usually provide exceptions for the late filing of probate when no other case for that estate exists.
Tips for Probating a Will Months or Years After a Death
The need for court-issued authority to administer the estate spurs many people to file probate later than usual. Often, people think that probate isn’t necessary until they try to sell a house or close an account and learn that they lack the authority to do so without opening probate.
Unfortunately, when you file probate, you can’t pick and choose the parts of the estate you deal with. The executor must administer the entire estate, which can be challenging, especially if a lot of time has passed since the decedent’s death.
Search your state’s unclaimed property fund for estate assets
When nobody can find the owner of an asset, it often makes its way into a state’s unclaimed property fund. If you plan to probate the will of someone who passed away several years ago, some or all of the decedent’s assets could be in the fund.
Assets filter into the unclaimed fund in two primary ways. First, when heirs or other interested parties don’t come forward, some estates end up being probated by a third party called the public administrator. The court-appointed professional distributes an estate’s assets and pays its bills. If the administrator can’t find heirs, they can close the estate and send the assets to the unclaimed property fund for safekeeping.
Alternatively, the custodian of an asset might send it directly to the unclaimed property fund. For example, a bank can drill a safe deposit box after the rent remains unpaid. If the owner does not come forward, the bank turns the property over to the state fund.
State treasury departments manage unclaimed property funds. To look for unclaimed property in your state, search for your state’s fund online at the National Association of Unclaimed Property Administrators. From there, each state provides rules for claiming property, but it usually includes filling out a claim form and submitting proof of identity. To claim property on behalf of a decedent, the fund can require letters of appointment from the probate court.
Search for other cases before filing
As more time passes since the decedent’s death, the more likely someone else has initiated probate. Even creditors can initiate probate in an attempt to get their claims paid. You can save yourself a lot of time, effort, and even money by confirming that nobody else has opened a case.
Probate cases belong in the county of the decedent’s domicile at the time of their death. That can be a confusing distinction, especially for those who enter care facilities or move just before death.
Cases can also be opened in a county where the decedent owns real property, so there can be more than one correct place to open a case. Check with your local court to determine their procedures for conducting a case search. They may charge a fee and be limited to only cases.
Finding any existing cases is essential because you need to know whether anyone else has taken action on behalf of the estate. Additionally, there should not be two separately appointed executors working simultaneously.
Evaluate whether probate is needed
If you find the will of someone who has passed away, state probate laws require that you deposit the will with the court. Keep in mind that depositing the will simply files the will and is different from starting a full-fledged probate case.
Each state offers a small estate procedure for lower-valued estates without real estate. If the will you found deals with such an estate, you might be able to manage any remaining assets through that process. The small estate process can be as simple as presenting a notarized affidavit to the custodian of the asset, so it is faster, easier, and usually cheaper than opening a probate case.
Also, remember that estate planning can remove many, if not all, assets from the probate estate. Even if you find a will, probate might not be needed if the decedent sets up their assets to transfer through beneficiary designations, joint tenancy deeds, and trusts.
Know that the heirs of deceased heirs can inherit
Probating a will long after the decedent dies comes with many challenges. Still, an extra layer of work comes about when any of the beneficiaries named in the will have died after the decedent.
Wills often include language clarifying that a bequest only goes to a beneficiary if that beneficiary survives the decedent (e.g., “I give my grandfather clock to my sister Susan if she survives me.”). That means that the beneficiary needs to be alive only at the decedent’s death, not when the executor distributes assets.
The chances of a beneficiary passing away increase when long delays happen between the decedent’s death and administration of the assets. Then, the executor faces the additional task of finding the executor of the beneficiaries’ estates or even ascertaining their heirs if there is no estate.
While Wills Remain Valid, Executors Face Challenges with Delayed Probate
An ounce of prevention is worth a pound of cure when administering an estate. If you think someone might make you their executor, ask them where they plan to keep their will. Some courts even allow testators to lodge their case before death for safekeeping, making it easy to find and ensuring that it reaches the court quickly.
Time doesn’t damage a will, but it can make administration much more challenging for the executor.