Do You Need to Probate a Will?

Tyler Kubinski • August 17, 2020

What is Probate?

Probate is the legal process of validating the last Will of the deceased person. The purpose of Probate is to determine which Will (if there are multiple) was the most recent and to identify if the Will meets the statutory requirements of the Texas Estates Code. For example, the Texas Estates Code requires two witnesses to testify that they witnessed the deceased person signing the Will or a Self-Proving Affidavit be attached to the Will.

If I have a Will, do I need to go through Probate?

Probably. If there is a property that you need to transfer the title to sell it, such as a house, a car, a bank account, you need to probate the Will. Under Texas law, a Will is not self probating and must be probated within 4 years of death. By probating the Will the judge legitimizes your Will as the Last Will and authorizes an Independent Executor to act on behalf of the estate without court supervision and allows the executor to sell and/or transfer the title of the properties.

It has been more than 4 years since my family member’s death, can we still Probate the Will?

It depends. A court may allow a Will to be probated after four years only if:

1. The executor was not in default in failing to present the will for probate within 4

years of death; and

2. All interested parties agree and consent to probate the Will.

Default is a broad term that has been applied generously by the courts. If the will excludes any children, it is unlikely they will consent. The estate then will be distributed by intestacy and those excluded children in the Will will receive a share of the estate, which is not what the testator (dead person) wanted.

What happens if I die Intestate (without a Will)?

If you die without a will, this is called intestacy and Texas law provides how your property will be divided. For example, if you were married but had children from a prior marriage or out of wedlock, then your half of the community property will be divided between all your children equally and not your spouse. This is not what most people want for their spouse and shows why it is important to have a Will. If you die without a Will, your loved ones will be required to file a Declaration of Heirship with Administration, which is an expensive process compared to probating a Will.

If you need help with probating your family member’s Will or you

need a Will for yourself, call our office at 915-593-8883.

< Older Post

I want a Divorce from my abusive spouse

By Tyler Kubinski • July 28, 2020

Under the Texas Family Code, family violence is an act by a member of a family against another member of the family that was intended to result in: • physical harm; • bodily injury; • assault; • sexual assault; or • a threat that places a family member in fear of immediate and unavoidable harm. Family violence includes abuse. Abuse occurs when the act or failure to act that results in: • the mental or emotional injury to a child, • causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury, • physical injury that results in substantial harm to the child, or • failure to make a reasonable effort to prevent an action by another person that results in physical injury to the child.