FAQ’s – TEXAS PROBATE LAW
Frequently Asked Questions About Probate In Texas
We have tried to get a compilation of the most frequently asked questions listed below. We understand that the list is not exhaustive, and would invite you to contact us with regards to your probate needs if you have questions. We look forward to talking to you!
Probate is the process required to transfer assets out of someone’s name after they pass. It is created to ensure all debts are settled, and any remaining assets are correctly transferred to beneficiaries and heirs.
Intestacy is when someone dies without a valid Will. The Texas Estate Code lays out a very specific way on how assets will be divided and distributed. Most people do not like this particular system, and therefor “opt-out” by creating their own Estate Plan.
Texas Law requires that a Will gets probated admitted to probate within 4 years the date of the Decedent. If the Will is never admitted into probate before these 4 years laps, then the Decedent is treated as having died without a Will. This means that the will may be set aside and the heirs are determined under Texas Intestacy laws.
Without probate, certain assets may remain in the name of the Deceased. If this happens, beneficiaries and heirs will not become the new owner of the assets, and therefor will not be able to sell, mortgage, insure or transfer title of the asset in question.
I will needs to be probated if you want to transfer assets out of the Deceased name into the Will’s beneficiaries names. For example: real estate or other property (bank accounts, life insurance, cars, stocks, etc.) that did not transfer by Beneficiary designation or other title transfer method.
Anyone who has an interest in the estate. This can be a spouse, child, beneficiary, heir or even creditor.
To start Probate, someone (the Applicant) will need to file an application to administer the estate in Texas. This is done by retaining an attorney to represent the Applicant. The Attorney will prepare the application in accordance with the law and file the Application with the appropriate court.
It is almost always probated in the county where the decedent resided at the time of death.
It depends. Only bank accounts without “rights of survivorship” would be subject to probate.
On average, we like to tell people uncontested Probate takes 180 days when we have a well-drafted will, little debt and no other issues that present themselves. That said, some probate cases can take up to 3-4 years.
YES – Under Texas law, people applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney.
A handwritten Will (also known as a holographic Will), may be valid if it is signed and written entirely in the handwriting of the deceased individual.
No, Probate is not always necessary. When all a Deceased has no assets that require ownership transfer probated will be deemed unnecessary. However if there are still assets in the Deceased’s name, then probate will be required to transfer assets out of their name to the named beneficiaries or heirs.
Creditors are only entitled to recover of their debt from the assets that the Decedent owned at the time of his death. Family members, potential beneficiaries or heirs are generally not liable for a Decedents debts.
YES. If an Affidavit of Heirship is not possible, probate usually is the fastest and most cost efficient solution.
If you had property that was held in both your names, and the assets was not automatically transferred to you upon dead, then yes, you will have to go through probate. Assets that usually have to probated are: Cars, stocks, some bank/investment accounts or other titled/registered property.
If your father died and left all to his new wife without any conditions, you are not entitled to anything from his estate. If stepmom decided not to leave you anything, then legally you are out of luck. Sadly, this is a very good example of bad planning, which is completely avoidable! This is why we recommend people to talk to an experienced estate planning attorney to ensure this does not happen.
The only option you have is to sue your relatives, however this likely will not be worth the cost and time involved unless they took something of great value. The sad thing with situations like this is that “inheritance visits” like this, usually mean that the first one who dropped by ends up keeping what hey took. If there is a will, the will should be probated ASAP to ensure no more things ‘disappear’, the executor will have to ensure the locks are changed, and items are transferred to the person intended to inherit under the will.
You most likely need to talk to an attorney to see what your options are. In general, most situations require that a determination of heirship is done before any type of probate administration can be had. An experienced probate attorney can tell you what the best process would be for the facts in your case.
Most likely not. Unless the Will was completely in his handwriting (not typed), Texas Law requires that a Will be witnessed by TWO disinterested witnesses (people who do not inherit under the will).