The short answer is no – there is generally no legal requirement to probate a will in the State of Texas. Having said that – there is a legal requirement to file a will with the county clerk upon learning of the passing of an individual. A court may also order someone in possession of a person’s will to turn that will over to the court or designated executor and failing to obey such a court order could lead to a contempt of court charge. I should also note that in certain circumstances there may be a contractual relationship between beneficiaries that mandates probating a will as well.
Why You Might Not Want to Probate a Will
Everyone has heard horror stories of beneficiaries hiding wills when they are unhappy with the terms or disgruntled spouses doing the same. There are always bad actors but that is a subject for a different post. This article is not about such bad actors and their reasons for not probating a will. The fact is, there are a variety of very legitimate reasons why you may wish to avoid probating a will.
One reason might be privacy – probating a will in court is a public matter meaning that most filings in the case as well as the contents of the will become public information. This includes the inventory, appraisement, and list of claims. Some families or beneficiaries might prefer to keep such estate matters private.
Another reason you may not wish to probate a will is a concern over costs. Perhaps the value of the estate compared to the costs of the probate process make probate prohibitively expensive.
Another reason you might not probate a will is because of the nature of the estate. Perhaps the estate consists solely of personal property and the beneficiaries are in agreement regarding the distribution of the estate property.
Things to Consider Before You Decide Not to Probate a Will
A primary consideration is whether there exists a need to probate the will that cannot be satisfied outside of the probate process. For example, transferring title to real property will generally require some form of probate if held in the deceased’s name. Having said that – there may be cheaper alternatives to a full probate available (such as probating the will as a muniment of title) depending upon the nature of the estate assets and claims against the estate.
You must also consider who has possession of the deceased’s assets. Third parties in possession of the deceased’s assets might require probating a will to establish the authority of an individual to receive those funds. For example, if the deceased did not have a POD designation on their account then funds held at a bank might require the appointment of an executor through the probate process before a bank will release those funds.
Another important consideration is providing for and appropriately documenting the distribution of the deceased’s assets if you do not probate his or her will. Even if you and the other beneficiaries agree at this point in time – you don’t want to risk someone changing their mind or deciding they want more from the estate at a later date. At that point you might end up in court in a contested situation that will cost more to settle and you will have to handle it without the benefit of the full estate to fund the proceedings. A family settlement agreement is often useful in these types of situations to document the beneficiaries agreement not to probate the will and on the distribution of estate assets.
If you recently had a loved one pass away and are considering whether it is appropriate to probate his or her will, you can contact my office to schedule a free consultation to discuss your options.