What if an Executor Fails to Probate a WillWhen a person dies with a will in place, they typically name a person to serve as their personal representative. The personal representative is responsible for making sure that the deceased’s debts are paid and that any remaining money or property is distributed according to the deceased’s wishes.  Oftentimes, wills are written years before a person dies. Once the creator of the will dies, the personal representative should promptly file the will in court to begin the probate process. However, this can be easier said than done. Sometimes a personal representative dies before taking care of the will. The personal representative may also decide they no longer want the job. In these cases, the will would fail to be probated.

Though no one is required to serve as a personal representative, there is still a responsibility to do something regarding the will. Michigan law requires that any person in possession of a signed will must deposit it at the county court where the deceased resided “with reasonable promptness”.

Failing to file a will within the time limit mandated by the state can have serious consequences. A person who fails to deposit the will with the probate court can be sued by anyone who was financially hurt by their failure to file. That persona can also be held in contempt of court for failing to file the will.  Here is the Michigan statute that applies:

700.2516 Delivery of will or codicil by custodian.  A custodian of a will or codicil or person having possession or care of a will or codicil shall forward it to the court having jurisdiction with reasonable promptness after the death of the testator either by delivering it personally or by sending it properly addressed by registered mail. A person who neglects to perform this duty without reasonable cause is liable for damages that are sustained by the neglect. A person who willfully refuses or fails to deliver a will or codicil after being ordered by the court in a proceeding brought for the purpose of compelling delivery is guilty of contempt of court and subject to the penalty for contempt.

Keep in mind that probate is not a necessity in all cases. People often do not bother to file a will if the person left nothing of value or all items of value were put into a trust, a joint account, or some other vehicle designed to avoid probate. However, it’s important to remember that there is a difference between filing a will and opening probate. Even if it appears that probate will not be necessary, the will must still be filed.

Our office has attorneys who are knowledgeable about the Michigan probate process and  and can help you advocate for your loved one’s final wishes. Please contact us online or by phone at (517) 548-7400 in Livingston County and (586) 751-0779 in Macomb County if we may be of assistance.

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