What is Probate?
In Texas, Probate is the simple step of having a court review the decedent’s will and appoint the person named in the will, the executor, to manage the decedent’s estate.
IS PROBATE DIFFICULT?
In a nutshell, NO! Texas Probate can be simple and inexpensive. The basic steps of probating a will are:
- Filing an application for probate with the court
- The will gets filed with the application
- One hearing to probate the will and appoint an executor
- Filing an inventory of the estate, or in many cases, a simple affidavit that the beneficiaries have received an inventory.
In Texas, with a properly drafted will, probate is neither time consuming nor expensive.
WHY SHOULD THE WILL BE PROBATED?
It isn’t possible, in most cases, to wrap up a decedent’s estate without probating the will. By probating the will, the executor is given authority to act in place of the decedent, to sell the decedent’s property, and to distribute it.
Even if all of the beneficiaries agree how to distribute and sell the decedent’s assets, they usually will not be able to close mutual funds, sell real estate, or gain access to bank accounts without someone being appointed executor.
WHAT’S NEEDED TO FINALIZE THE ESTATE?
Most of the work of the estate is done by the executor without the assistance of a lawyer or interference from the court.
The executor can hire accountants and lawyers to represent him or her to aid and advise, but that isn’t necessary in simple estates. Legal advice is often sought in selling real property or settling any claims against the estate. An accountant is usually needed to prepare final tax returns for the decedent.
WHEN SHOULD I PROBATE THE WILL?
As soon as you can. The quicker you begin the process, the quicker the executor will have the authority to begin to wrap up the estate.
If you need access to bank accounts to pay expenses and debts, you need to move quickly.
If you wait too long, it will cost you! You can’t probate a will, without additional expense, after four years after the decedent’s death. So, waiting isn’t a good idea.
CAN’T I AVOID PROBATE?
Why avoid probate? If probate isn’t expensive and does everything legally necessary to wrap up estate, why avoid it? There are some short-cut procedures, but if you can probate the will you should.
Once probated, the executor can do everything to wrap up the estate — no limits! No “short-cut” procedure can do that.
Can I do it myself? If it is so simple, why hire an attorney?
For two reasons: First, it is relatively simple if you have done it hundreds of times like our office. Second, often courts will not allow someone to proceed without an attorney to open an estate administration.
WHAT IF THE WILL CAN’T BE FOUND?
It is possible in most cases to probate a copy of the will. Additional proof is required, but do not give up hope. If you have a copy, or can find one from the decedent’s attorney, then we may still be able to proceed with an inexpensive probate process.
CONSEQUENCES OF NOT PROBATING A WILL
Many people ask us “what happens if I don’t probate the will.” I have to say, this question distresses me. Why not probate the will? Every day we counsel families distraught because their loved one died without a will. So, you have a will. THAT IS GREAT NEWS! But a will is only valid if admitted to probate by a Court. The Court procedures determine if it is the last, valid will, and thus the legal will writing the rules for the estate. The will you possess has no legal meaning or impact until the Court admits it to probate. And, you have four years to get it done.