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.