If you are the Executor of an estate and you fail to probate a will, you may be held personally liable for expenses incurred by the estate and financial impacts to the beneficiaries or heirs of the decedent.  An Executor owes a fiduciary duty to manage the estate in good faith, so if an Executor fails to probate a will, this constitutes a breach of a fiduciary duty.  That said, all these consequences can be avoided with proper planning and guidance. 
 
Probate is the legal process of administering certain property of a person who has passed away, called “the decedent.”  The process will be managed by the Executor or Administrator of the estate and supervised by the Probate Court.  If there is a will, then the fiduciary named in the will is called the Executor.  If there is no will, the individual who applies and is appointed to take charge of the process is called the Administrator.  The Probate process involves verifying the validity of the will (if there is one); identifying and gathering the decedent’s property; paying the claims, taxes, and other expenses incurred by the estate; and distributing the remaining assets to the beneficiaries named under the will.  If there is no will, then the remaining assets will be distributed according to the state laws of descent and distribution. 
 
It is important to know that not all assets are probate assets.  Some property can pass directly to its recipient outside of the probate process.  Property that is not subject to probate includes property held in a trust, real estate owned with another individual with rights of survivorship, joint bank accounts, Payable on Death or Transfer on Death accounts, life insurance benefits with a beneficiary designation, or retirement benefits with a beneficiary designation.  If a decedent’s assets do not fall within one of these categories, then the asset will be deemed a probate asset and must pass through the court before distribution. 
 
Probate is the only legal way to transfer the probate assets of a decedent.  If probate assets do not pass through the court, then titled assets such as real estate and cars will remain in the name of the decedent indefinitely, and accounts held in only the decedent’s name will not pay out.  If titled property remains in the name of the decedent, then this affects the ability to sell the property in the future.  The estate may also incur ongoing expenses such as property taxes, insurance premiums, and car registrations.
 
If you or someone you know is in need of legal assistance with a Probate matter in Franklin County, call Lardiere McNair DiNicola & Stonebrook to set up a free consultation. 

Amanda Plautz is an Associate Attorney at Lardiere McNair DiNicola & Stonebrook, Ltd., LPA.  To read more about our firm, please visit lawyerscolumbusohio.com.