It is a scenario we come across time and time again while working in an elder law firm. A client comes to our office for estate planning. While compiling a list of their assets, we learn that they have real estate that was inherited from their mother. Our office reviews the deed records to make sure we can account for this property in the client’s estate plan. Unfortunately, though, the land is still titled in the client’s mother’s name.
“That can’t be right! Mom’s will left everything to me!”
The problem is that while the client’s mother had a will, it was never admitted to probate. Accordingly, title to the property was never formally transferred to our client. This means that they cannot sell it — or pass it to their children in their own will — without taking further action.
Probate is simply the legal process of ensuring that a deceased person’s assets are properly transferred and that their debts are paid. A probate court will determine who should receive the deceased person’s assets based on either the instructions in their will or (if there was no will) under the “laws of intestacy.”
The following will attempt to answer some of the frequently asked questions we receive about probate:
What can I expect during the probate process?
This depends on several factors – whether the deceased person (in legal terms, the “decedent”) had a valid will, whether the will provides for “independent administration,” whether the decedent had any outstanding debts, and whether anyone comes forward to contest the proceeding.
If your loved one had a will drawn up by a licensed Texas attorney, the process will almost always go much more smoothly. In that case, the will should name an executor – a person who is in charge of wrapping up the decedent’s affairs – and should almost always provide for independent administration.
It is very important to have the original signed will (not a copy!). The executor should bring the original will to a probate attorney, who will file it with the court along with an application for probate and a statement of facts about the decedent’s life, death and family history. The court will review the will to ensure it complies with Texas law, and issue letters testamentary which give the executor the authority to manage financial accounts, pay the decedent’s taxes and debts, and wrap up the estate. This may or may not require a formal hearing, depending on the court you are in.
The executor will need to file a complete inventory of the decedent’s probate assets with the court. The attorney’s office will also publish notice to potential creditors, alerting them that the decedent has died, that a probate estate has been opened, and that they have a short window in which to bring claims against the estate to pay back the debt.
The executor will pay any valid creditor claims out of the estate assets, and then distribute what is left to the beneficiaries. For real estate, the executor will need to sign deeds formally transferring the property to the decedent’s heirs. Assuming that the will provides for independent administration, the executor will not need to go back to court to sign off on these transactions. The full process usually takes between 3 to 6 months unless someone comes forward to challenge the will.
My loved one printed a will off the internet, and it doesn’t say anything about “independent administration.” How does that affect the process?
Texas law allows for estates to be probated “independently” of detailed court oversight, but only if the will expressly provides for it. Otherwise, the executor is “dependent” on the court to review and approve every action taken on behalf of the estate. Unsurprisingly, this type of dependent administration is much more tedious, time-consuming, and expensive. That is why it is always best to retain an estate planning attorney to draw up your will!
I’ve heard probate is a nightmare. How can I avoid it?
If you have a valid will that provides for independent administration, probate in Texas is a fairly straightforward process – not nearly the bogeyman some people would have you believe.
That said, there are valid reasons to want to avoid probate: if you own properties in multiple states; if you wish to exert more control over your assets after your death; or if you simply want to make sure your family does not have to deal with hiring a lawyer and going to court while they are still grieving.
There are ways to avoid probate, but they all require detailed estate planning. Lady Bird deeds allow you to automatically pass real estate to your loved ones at your death, while still giving you the right to live in and use the property during your lifetime. Putting “payable on death” beneficiaries on your financial accounts will transfer certain assets outside of probate. Setting up and properly funding a revocable living trust can provide another avenue to avoid probate. The best course of action will depend on your unique circumstances and the types of assets you own. Schedule an estate planning appointment with our office for further details.
We have a copy of the will but cannot find the original. What do we do?
There is a way to probate a copy of a will, but it requires additional work as well as cooperation from the witnesses who signed the will. Set up an appointment with one of our probate attorneys for more information.
My loved one died without a will. What do I need to do?
If there is no will, the laws of intestacy determine who inherits your property. A probate proceeding will still be necessary to identify the heirs at law, pay the decedent’s debts, and ensure the estate assets are properly distributed. A proceeding to determine heirship is the typical method for administering an intestate estate. This is a much more involved (and expensive) process than the simple probate of a valid will. It is always better to have a will!
In some cases, usually dealing with very small estates or limited assets, there may be other methods of probating the estate without lengthy formal proceedings. A variety of factors will determine whether these options are available to you. Contact our office to schedule a probate appointment for further details.
My loved one died ten years ago, but the family never did anything and now I want to sell the house. Can I still probate the will?
No. You have four (4) years from the date of death to probate a decedent’s will. After four years have elapsed, your options become much more limited. Depending on the circumstances, there may be a method of using the will to transfer title to real property. You will need to speak to your lawyer to see if this is a viable option. If not, the decedent’s assets will pass as if they died intestate (without a will), meaning a proceeding to determine heirship may be required.
What if I do nothing?
If an estate is never probated, the legal title to land, houses, bank accounts and vehicles will not formally pass to the decedent’s heirs or beneficiaries. You will not be able to access the decedent’s financial accounts unless your name was already on them. You will not be able to sell the decedent’s cars or real estate – because legally, you don’t own them. You may be able to go years without running into these issues, but eventually, and inevitably, they will arise.
If you wait longer than four years, the will may not be honored, and the decedent’s property may pass to other relatives in ways they did not intend. In general, the more time that passes after the decedent’s death, the more difficult it becomes to administer their estate. The best course of action is to speak with a probate lawyer within six months of a loved one passing away. That said, it’s always better late than never!