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To Probate Or Not To Probate, That Is The Question

A question I am often asked is, “When do you have to probate?” The basic answer is, you probate a Will when you need to transfer property title.

As I have blogged before, trust “peddlers” are out pushing the sale of their trusts with the pitch that, with this approach you can avoid probate. What is so bad about a Texas probate? Nothing really, if you have a proper Last Will and Testament. Most probate attorneys work on an hourly basis. Where the “peddlers” get it wrong is that while in California and New York the cost of probating an estate is usually done on a percentage basis of the value of the estate, but not so in Texas.

Another key difference is that Texas has a distinct “independent administration” option, that allows for executors to administer the estate outside of court supervision, allowing for an expedited process, while in many other “common law” states, such as New York or California, Will probate requires dependent, or court supervised administration that can be drawn out for months or even years, where the dependent administrator must submit to the court for approval whenever they make a decision that pertains to the estate.

Prepare for Texas Probate

What are the steps to probate in Texas? First, start off with a good Will. Twice this year we had “defective” Wills that prevented a straightforward probate. The Wills were not defective, meaning that the wishes of the departed were carried out, but we had to go through extra steps to have the Will admitted to probate. As I have blogged before, you can’t have a simple little Will if you have not lived a simple little life. The first step is not to trust a Will off the internet or only costs a few bucks. You should care more for your family than making them take the risk of a “defective” Will.

In one case, I was presented a Will that had fill in the blanks, looked like the pages were out of order and while the Will had the proper signature of the declarant (the person making the Will) and of the witnesses, not all signatures were properly notarized. That made the Will non self-proved, which means special proof is needed in court. That fact required us to try to locate the witnesses and notary. One witness had died. The notary showed up at the court house for the hearing but the courthouse was evacuated because of a bomb threat. This was a most unusual probate.

Probate Hearing

If you have a properly executed Will, the second step is for the lawyer to file an Application for Probate of a Self-Proved Will. What we had to file above was an Application For Probate of Attested, Nonself-Proved Will Produced In Court And For Issuance Of Letters Testamentary. After the expiration of a certain number of days, either the court or the lawyer will set a hearing before the probate judge as the third step. The fourth step is to attend the hearing. The hearing can be emotional because the proposed executor, which is usually a spouse, has to testify to certain facts such as the date of death, residency of the descendant, that the Will is valid and never has been revoked and a few other facts not relevant here. Don’t worry, the testimony is written down and the proposed executor will simply sign the testimony usually before the court clerk.

If, however, you cannot find the original Will, this too presents a challenge. In another case this year, the surviving spouse could not find the original Will but had an executed copy that had the word “draft” stamped on it and had a few strike outs as well. This required locating one of the two witnesses whose added testimony was to prove that the Will was signed in front of that witness and the Will and witness signature was notarized in front of the notary.

After the fourth step of the hearing and signing of testimony, the freshly appointed Executor of the Will will take an oath usually while still in the courtroom. From there the fifth step is ordering “Letters of Testamentary” (at a whopping $2 each). These Letters are proof of the Executor’s status and power and are usually required to sell or transfer property, open estate bank accounts or transfer stock. The last and sixth step is to take an inventory of the estate, usually just two pages, and file it with the court. This simple inventory lists both personal and real property and debts owed to (not by) the estate.

But what happens if you cannot find the Will or no Will was ever drawn up? The question then becomes what property is subject to probate. Insurance proceeds, bank accounts if opened with the right of survivorship and sometimes car titles do not have to be necessarily probated. These liquid assets pass to the survivor per the “contract” i.e. the beneficiary under an insurance policy or the survivor designated on the bank account signature card. I had a third case this year where the Will could not be found but the two cars were in the decedent’s name. Texas now provides on the car title a form of an affidavit of heirship that lets the surviving spouse sign the form and file it with the Texas Department of Motor Vehicles to transfer the title into the survivor’s name.

Probate in Texas is simple despite my war stories. Just make sure that you have a good Will.

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