Frequently I get questions about whether a Will must get probated. The short answer is no, not every Will has to go through probate. However, that determination is most likely not able to be made until after the Testator (the person that made the Will) has passed away.
Some initial questions that help determine the need for probate are:
- Did this person own any real estate at the time he/she passed away?
- Are there any financial accounts that are solely in the name of that person?
- Did anyone owe significant sums of money to the person that passed away?
These are some of the primary reasons probate often is necessary. The title/deed to real estate must get updated to remove the name of the person that died. Although probate is not the only way to do this, it is the best way to ensure good title passes to the new or remaining owner. Other methods of transferring property ownership is the subject of another post. In short, your Will acts as a deed in order to pass formal ownership of real property to the person designated in your Will to receive that property.
This same concept applies to financial accounts that were held solely in the name of the person that died. If the accounts do not have any beneficiary designations (such as Pay On Death), the financial institution is not going to hand over the account until some form of probate proceeding has determined to whom the money should go. The most likely scenario is that the bank will simply freeze the account and refuse to communicate with anyone until probate is in process. I will discuss in another post how to plan ahead and help prevent this situation.
If someone owes you a significant amount of money, after you die there must be someone with the legal authority to collect that debt. If the debt can’t be settled informally, the family will need a court to appoint an Executor or Administrator (determined by the existence of a Will or not) to represent the estate and pursue legal proceedings to collect that debt.
If the answer to each of those initial questions is “no,” then the odds that probate will be necessary are greatly reduced. Additionally, Texas has several methods that allow the handling of an estate that may not require a formal probate proceeding through the courts.
You should consult an experienced probate attorney after a family member has passed away in order to get good guidance on how to handle the property and business matters left behind. Keep in mind, cousin Bob’s ex-wife’s next-door neighbor’s best friend whose spouse died three years ago is not a good source of legal advice.
At New & Hall, we offer a free initial consultation on Will Probate to help you determine what steps need to be taken and how we can help you in the most economical manner. Contact Us about Will Probate and we will guide you every step of the way.