Do I have to probate the Will? Is probate necessary?
It depends. A person's will controls the disposition of their "probate assets." If the Decedent owned probate assets, then a probate procedure is probably required to transfer those assets. Probate assets are assets in the Decedent's name, which do not have a right of survivorship or beneficiary designation. Probate assets also include any life insurance or other assets payable to the Decedent's probate estate or payable to beneficiaries who have all died before the Decedent.
Non-probate assets are assets that do not have to go through probate at the Decedent's death in order to pass to the beneficiaries. These assets pass by operation of law or pursuant to a contract. Examples of non-probate assets include life insurance, pension benefits, profit sharing plans, annuities, jointly owned property with right of survivorship, trust assets and powers of appointment.
If the estate is comprised entirely of non-probate assets, then probate should not be required. If a loved one has died, it is important to consult an attorney who can advise you as to whether probate is needed. If probate is necessary, but the will is not probated the statute of limitations may bar admitting the will to probate in the future. As with most legal issues, time is of the essence in any probate matter so do not wait to consult an attorney regarding whether probate is needed.
Is there a time limit on probating a Will?
Yes, Texas law provides that a will must be probated by an interested person within 4 years of the date of death of the Testator (person who made the will).
What happens if more than 4 years has passed?
Generally a will may not be probated more than four years after the date of death of the Testator/Decedent (person who made the will.) If more than 4 years has passed, it may still be possible to probate the will if the person offering the will for probate can prove he or she was not in default for failing to probate the will sooner. The Court may admit the will to probate as Muniment of Title, but cannot grant Letters Testamentary. Muniment of title is typically used to transfer title to real property and is not always accepted by financial institutions. If the estate contains assets other than real property, Muniment of Title could make administering the estate very difficult.
If the will cannot be probated, the estate will pass under the intestacy laws of Texas. The disposition under intestacy law may not be the same as the disposition according to the will. Probating a will in a timely manner saves a lot of time, headache and expense.
Is an Original Will needed?
A copy may be acceptable, but it is always preferable to have an original. Generally an original will is required for probate. If an original cannot be found, there is a presumption the will has been revoked. A copy may be probated if the cause as to why the will has not been produced can be proven (for example, establishing the Decedent's house burned down with the original will inside), the Court is satisfied that the will cannot be produced and the contents of the will are substantially proven (by testimony or a copy). Probating a copy is much more complex and requires special pleadings, notices and proof.
Who may probate a Will?
A will may be offered for probate by the nominated Executor named in the will or by any interested person. Generally an interested person is someone with a pecuniary (monetary) interest in the estate, which typically means a beneficiary of the will.
It is important to note that a person is not the Executor until they are appointed by a Court. An Executor must qualify by meeting certain statutory requirements before they can be appointed, even if they are nominated in the will.
What are the procedures available for probating a Will?
Typically when a person dies, probate is necessary to transfer their assets to their beneficiaries. The probate procedure which applies generally depends on the type of assets that belong to the Estate.
Letters Testamentary: The most common form of probating a will is applying for Letters Testamentary. Through this process, the Court determines whether the will is valid, appoints an Executor and issues Letters Testamentary which are evidence that the Executor has the authority to act on behalf of the Estate. The Executor may then begin to administer the estate, which involves collection of assets, payment of debts and distribution of assets to the beneficiaries. When financial institutions are involved, for example if the Decedent had money in bank accounts, stocks, bonds, or other investment accounts, Letters Testamentary are usually required before the institution will transfer any of these assets. The financial institutions want Letters Testamentary to ensure they release the funds to the appropriate party. The Letters Testamentary prove the Executor is entitled to access the assets and relieve the financial institution from liability, as the Executor is responsible for proper handling of Estate assets.
Muniment of Title: Muniment of Title is a shortened process used to probate a will when administration is not required. The will is admitted to probate and declared valid, but no other administration of the estate takes place. The Order admitting the will to probate and the will are recorded in the real property records. This transfers title to real property from the Decedent to the Beneficiaries. Generally Muniment of Title is only appropriate if: no more than four years have passed since the Decedent's death, there are no unpaid debts (excluding secured debts on real property), and administration is not required. Muniment of Title is typically used when the primary assets of the estate is real property, as many financial institutions will not accept Muniment of Title for bank accounts, stock transfers, etc.
This abbreviated process does not require publication of notice, notice to secured creditors and return of an Inventory or Affidavit in Lieu of Inventory, which are otherwise required in probate.
Regardless of the type of probate necessary, most courts require that a person offering a will for probate be represented by an attorney. There are minimal exceptions to this rule, and generally only involve small estate affidavits (not addressed in this article). If a loved one passes away, make sure and consult a probate attorney in a timely manner. An attorney will walk you through your options, ease your mind during this stressful time and ensure the Estate is properly handled.
