When a loved one dies, you may assume the long, arduous, and expensive probate process lies ahead. But that may not be the case, even if your loved one has a will.
In general, probate is the legal process of gathering a deceased person’s assets and distributing them. A person’s will provides instructions on how to divvy up his or her assets. However, the executor of the estate cannot just automatically start doing what the will says.
He or she needs to prove that the will is valid. That is called “probating a will” and involves both authenticating the will and approving the executor.
Now your next question might be, do all wills have to go through probate in Texas? Today, we will answer that for you.
There is no general requirement that all wills go through probate in Texas. However, if the decedent dies and leaves a will, you can only implement its provisions through probate.
If the decedent did not title or structure his or her property in such a way to avoid probate, then there is no way for the beneficiaries to receive their inheritance without probate.
To administer the decedent’s estate, you have to go through probate to transfer probate assets. That would include any property owned solely in the decedent’s name that does not have any sort of beneficiary designation.
There are instances where you can avoid probate even if the decedent has a will. If there are no assets in the estate, you do not have to go through probate.
For example, if all of the decedent’s property is held in a revocable living trust, there is no need for probate since the property is distributed according to the terms of the trust. You can also avoid probate if the estate consists entirely of community property and non-probate assets.
If the decedent’s estate consists of only community property, you do not have to probate the will. Unless both spouses agree to make it “separate property,” all property and earnings of both spouses acquired during the marriage is community property. There are a few types of property that are exempt from this, but the vast majority are not.
At death, as long as neither spouse has children from previous marriages or relationships, the surviving spouse automatically inherits all of the community property.
Regardless of whether the deceased person left a valid will, you do not have to go through probate if the estate is made up of only non-probate assets. Non-probate assets are assets that either have a named beneficiary or are jointly titled. Here are some common types of non-probate assets:
Without going through probate, these assets automatically transfer at death to the named beneficiary or joint owner. The title, deed, or TOD supersedes any contrary beneficiary designation made under the decedent’s will.
You have four years from the decedent’s death to file the probate paperwork. If you miss the deadline, typically, a judge will not allow you to probate the will and it becomes invalidated. However, there are some narrow exceptions to this rule.
If you do not submit the will into probate or miss the filing deadline, the probate court will treat the decedent’s will as if it never existed. Then, the decedent’s property will eventually be distributed according to Texas intestate succession law.
Under intestate law, the state decides who will inherit the property. This may go completely against what the decedent originally intended in his or her will and cause intense conflict among family members.
If you are unsure whether your loved one’s will must go through probate, consult with a probate attorney. We understand that probating a will may not be first on the priority list after a loved one’s passing.
In fact, we encourage you to take the time to grieve and process your loss before handling the distribution of the estate.
At The Law Offices of Kyle Robbins, PLLC., we can answer your probate questions and prepare you for the process if necessary. We will help you complete the paperwork, file it with the court, and pay the court fees. Contact us today so we can discuss how we can best serve you.
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