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What Happens If You Don’t File Probate in California?

03/26/2024 | Blog, Probate
A formal last will and testament

In the aftermath of a loved one’s passing, dealing with legal matters can seem daunting. One crucial step often faced is the probate process, especially in California where probate law plays a significant role in how a deceased person’s estate is handled. But what happens if you don’t file probate in California? What happens if an executor does not file it?

This blog explores what happens if you don’t probate a will, highlighting the potential consequences and emphasizing the importance of addressing estate matters in a timely manner.

The Consequences of Not Filing Probate

Real Estate and Bank Accounts

When a person dies, assets such as real estate and bank accounts cannot be legally transferred to heirs without probate or a similar legal process. If probate is not filed, these assets remain frozen and inaccessible, complicating financial matters for family members and potentially leading to unnecessary expenses and complications.

Executor Responsibilities

An executor, named in the will, has the duty to file a petition for probate in a timely manner to manage and distribute the deceased’s estate assets. Failing to file probate can result in the executor being held personally liable for any resulting damages to the estate or beneficiaries. Additionally, if an executor does not probate the will, family members or other interested parties may take legal action against them.

Distribution of Assets

Without probate, the clear and legal distribution of assets according to the deceased’s wishes cannot occur. This could lead to disputes among family members, especially concerning real property and personal property. In cases where there is no will, California’s probate law dictates the distribution of assets, but probate must still be initiated to apply these laws.

Legal and Financial Implications

If a will is not probated, or if there is no will and probate is not filed, the estate may face additional legal and financial issues. For instance, creditors may come forward, seeking payment from the estate. Without probate, there’s no formal process to address these claims, potentially leaving more significant financial burdens on the surviving family members.

Impact on Specific Assets

Certain assets may have their own rules that bypass the need for probate. For example, life insurance policies and certain types of community property may transfer directly to a surviving spouse without the need for probate. However, for the majority of assets, especially those solely in the deceased’s name, probate is necessary to ensure they are distributed correctly.

What If You Don’t Have a Will?

If a person dies without a will in California, their estate still needs to go through probate for assets to be distributed according to state intestacy laws. These laws determine heirs based on familial relationships, but without initiating probate, these assets remain untouchable.

The Role of a Probate Attorney

Navigating the probate process can be complex, and the consequences of failing to file probate underscore the importance of seeking professional guidance. A probate attorney can offer invaluable assistance, ensuring that all legal requirements are met and helping to avoid the pitfalls of inaction.

Taking Action

To avoid the complications of not filing probate, it’s crucial to file a petition in probate court after a person dies. This action starts the process of managing the deceased’s estate, from paying off debts to distributing assets to the rightful heirs. Acting in a timely manner can mitigate the risk of disputes, financial complications, and potential legal action against the estate or its executors.


The implications of not filing for probate in California highlight the necessity of addressing estate matters promptly and accurately. Whether it’s real estate, bank accounts, or personal property, taking the correct legal steps ensures that assets are distributed as intended, or according to law if no will exists. Engaging a probate attorney can help navigate these waters, providing peace of mind to family members during a challenging time.

Learn more about the probate process.