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.
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My wife recently passed and we both have living wills here in Texas, whereby all of our assets go to the other, depending on who passes first. She had two credit cards as primary account holder, one of which has a credit balance. The bank has agreed to send me a check for the balance so we do not need to probate that sum of $760. There is nothing else solely in her name, so I’m leaning toward not using the court system because there is nothing to probate. Tell me if I am correct about this.
Thank you for contacting me. This is a public forum so it would be inappropriate for me to respond to detailed information on your case. If you would like to schedule a phone consultation or in person consultation to discuss the details of your situation, then please call me office at (903) 405-4242.
My father left his estate to me. Milam County Texas. I want to know if I have to probate his will if I am wanting to sell property. Just a question. I would like o take care of probating if need be just to do this all properly. What would be my next step with you? Thank you. Sandra Ginn
Thank you for contacting me. This is a public forum so it would be inappropriate for me to respond to detailed information on your case. If you would like to schedule a phone consultation or in person consultation to discuss the details of your situation, then please call me office at (903) 405-4242.
Hello,
My mother passed away and left everything to my father. They have a house and a car in both of their names. Does my father have to probate the will to sell the house? Also, if he doesn’t probate the will, then what happens if he passes away? He has a will that leaves everything to my mother first, then to the children if she is deceased.
I am sorry for your loss.
The general answer to your question is that whether probate is required always comes down to what types of assets and liabilities are part of the estate. When someone passes with a will, there are two options for probating the estate – a full administration or probating the will as a muniment of title. There are strict requirements to probate the will as a muniment of title. So it is impossible to say for certain which option is best in this situation without much more information – but you should not share that information on a public forum such as this.
We often see cases where the will of the first spouse who passes was never probated. Most of the time we end up having to go back and probate that will of the first spouse when the second spouse passes so it is best to do so now if it is needed.
If you would like to discuss the details of your mother’s estate in more detail, then you can call my office at (903) 405-4242 and schedule a consultation. We do offer phone consultations if that is more convenient.
BW
We were a same sex couple, my spouse & I had been together for 39 years & legally married in Connecticut since 10/21/2011. He passed away 10/11/2020 in his Will the “ESTATE BENEFICIARY” states: “I give, devise and bequeath all of my estate of whatsoever kind & wheresoever to————- (my name).” Everything we owned was in both names, do I have to have his Will probated since we were legally married & his death certificate name me a his spouse? The Will was witnessed by two people & notarized on 4/30/2019.
Thank you for contacting me. Unfortunately, I am in Texas and I am not licensed nor am I familiar with Connecticut law. I cannot answer whether probate is necessary in Connecticut.
In Texas, the answer would depend on the types of assets in the estate and whether there are any debts. Texas is a community property state so the name on the title is not determinative. If the asset was purchased during marriage, then it is community property and the deceased has an interest in the property that must be transferred via probate or a non-probate transfer. The might also be a need to use the asset to pay off debts of the estate. Again, this is Texas law not Connecticut – you should consult an attorney in your state.
When my mother died I decided there was no use in using her will, however there were 2 lots I deemed almost useless can I still gain a deed, I have qaid taxes on them thank you.
Thank you for your comment. If the lots were titled in your mother’s name, then you will almost certainly need to take some action to transfer title. What process you use will depend on the specifics of your situation. You may be able to use a muniment of title process if there is a will or an affidavit of heirship if there is no will. You would also need to look at whether any other names are on the title. It is common for us to discover in a situation such as this that your father’s name was also on the deed and his estate was never probated.
If you would like to discuss this further, then you can contact my office at (903) 405-4242 to schedule a consultation.
My husband left a very simple will saying he leaves all his wordly goods to me, his wife and names my name. It is signed and notarized and has a witness signature. The lawyer I hired here in Uvalde says it will not hold up in court. This was a third marriage for me and a second marriage for him. His twin boys by his first wife want everything we have. I am the one who worked not him.He was retired and lived on Social Security. Do I need a new lawyer, because I don’t feel good about this. The boys told the lawyer I could pay them 75 Thousand each and keep what they want . I have never seen that much money in my life. They want a truck that is a 2006, a jeep that is a 2008, a riding lawn mower 2003, etc.
I cannot comment on the validity of your husband’s will or comment on your attorney’s advice since I have never seen the will.
What I can tell you is that, with limited exceptions, Texas law requires two witnesses to a will and your comment indicates that there is only one witness. It is not uncommon to encounter mistakes in executing a will that render it invalid, especially with do it yourself wills folks download from the internet.
That being said, you have every right to consult with another attorney for a second opinion. I encourage you to consult with another attorney if you are not comfortable with the advice your attorney provided to you. Since I am located in Tyler, Texas this is not something I could assist you with.
If there is no requirement to probate a will, then how is the estate properly disbursed?
Also, can you verify and clarify this statement? It sounds like a ‘lawyers full employment program’.
Under Texas law, individuals applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person and/or estate must be represented by a licensed attorney. The rule follows from the requirement that only a licensed attorney may represent the interests of third-party individuals or entities. The only time a pro se applicant may proceed in court is when truly representing only himself or herself.
Thanks,
R. Vitti
If there is a need to administer the estate then there may be a need to probate a will. The point of the article is that if there are no assets and no other need to administer an estate, then there is no legal requirement to probate a will simply because someone died with a valid will.
Estates are separate legal entities. Texas prohibits the unauthorized practice of law which generally means providing legal advice outside of court or representing a third party in court without a law license. So you can represent yourself but not another person or entity such as an estate.