What is it and what is its purpose?

Probate is the process by which a court legally recognizes a persons’ death and authorizes the administration of his or her estate. If the person left a Will, the court also determines its validity. It is important to understand that this process typically must be completed whether the person has died with a Last Will and Testament in place or even if there is NO Will.

Probate is used to change title to assets from the name of the person who has passed away into the name of the beneficiaries. These assets cannot be transferred without the names on the titles being changed. Generally, the court is the only institution authorized the change the titles of assets that were owned by a deceased person. This is especially important for real property (real estate such as house, acreage, etc.).

For example: Husband (H) and Wife (W) have a home that is paid for. H dies and his Will provides that all his property shall pass to W. The land records and Appraisal District records show that the house is in the name of both H and W. Probate authorizes the title to the house to be changed to show 100% of the home now belongs to the W. Typically, a deed will be drafted to show that change and the deed is filed with the land records in the county where the property is located. This is a link in the chain of title.

Failing to have the title changed can make it a nightmare to try and sell the property later down the road. The Texas Estates Code is the governing law for probate in Texas. In Section 256.001 it states, “…a Will is not effective to prove title to, or the right of possession of, any property disposed of by the Will until the Will is admitted to probate.” In other words, the Will must be probated to have any legal effect.

Let’s look at the example used earlier. H and W own house with no mortgage on it. H dies and has a Will, but W does not probate the will and therefore, the title remains in the names of both H and W. Several years later W decides it would be in her best interest if she moves into a small community for seniors and prepares to sell the house. She lists the house with a realtor and fortunately a buyer is found very quickly.

But then the title company discovers the problem. The house is still legally held in the name of both the H and W. Since W never probated the Will, she has no authority to sell H’s 50% interest in the house!!! She only has the legal right to sell her 50% interest in the house. At this point, the title company will require W to do something to get the house only in her name. If the H has not been deceased more than 4 years, it might be possible to go back and probate the Will. If it has been longer than 4 years things are more complicated. There will be “hoops” to jump through and much more work for W to do in order to show she has the legal right to sell the house. Just showing the title company an “un-probated” Will is NOT enough to give W legal authority.

Now let’s add a wrinkle!

Let’s add something to our example of the H and W who have a home with no mortgage. Prior to their marriage, H and W had been married to others and H had a son from his first marriage. H and W don’t have a Will because they don’t believe they need one. Afterall, the only asset they have is their small house. Then, H dies. All along, H and W believe the house will legally belong to the surviving spouse when the first spouse dies. Wrong!! Because H did not have a Will, the State of Texas implements its own plan for you. Here’s how that plan would apply in this situation. Even though H and W bought the house together after they married, and even though it was titled in both of their names, when H died without a Will, W retains her 50% interest in the house, but H’s 50% interest passes to his son from the previous marriage! So now W and step-son own the house together.

One more woeful tale

H and W purchased a house after they married and eventually brought 2 children into the home – a son and a daughter. H died and W did not probate his Will that left everything to her. As a result of not probating the Will, the house is still titled in the name of both H and W. Two years later, W dies. She has a Will and in it she names her son as executor. Son goes to an attorney to probate the Will. That’s when Son discovers the house is still in both names. Since it has not been 4 years since H died, Son will now need to pay for the probate of both H’s Will AND W’s Will. If H died more than 4 years ago, it would make things even more complicated.

CAUTION!!

I see these scenarios play out every day in my practice. This can apply to any asset that is held with a title –automobiles, bank accounts, etc. It is hard enough to lose a loved one, but then to be faced with a mess and additional expense is heart-breaking. Do not do this to your family. Make sure you leave a plan and not a mess.

VARIOUS FORMS OF - AND ALTERNATIVES TO - PROBATE

There are multiple ways to probate a Will in Texas, as well as alternatives to probate. Which one you use depends on the specific facts of your situation. These are a few of the options:

  • Independent Administration
  • Dependent Administration.
  • Muniment of Title
  • Small Estate Affidavit.
  • Judicial Declaration of Heirship
  • Family Settlement Agreements
  • Affidavits of Heirship
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