Sept. 14, 2015
I am often called and asked if someone needs to probate a Will. The legal answer is that the person named as executor has a duty to present the will for probate by the Probate Court.
The practical answer depends on the circumstances. A Will has several functions or purposes. The primary purpose for most people is to pass ownership or title to the persons named in the Will. By presenting the Will to a Court the Will is determined to be valid. A Will has no legal effect until a Court makes the required determinations that it was properly signed and witnessed, makes a full distribution of the estate, is accepted by the Court as valid and decides if there is a need for administration.
This last phrase is the real question that most people are asking. One reason to present the Will for probate is that there is land in Texas that is conveyed by the Will, or that there is other property that the executor/administrator can collect and distribute more easily than the individual beneficiaries (heirs). Stock is one such asset. Sometimes a Will can be probated without the necessity of an administration, merely a simple hearing and everything is done.
Sometimes the collection of the assets and the sale of those assets is more simply done by having one person to be responsible for doing the various tasks that need to be done. Instead of five or six people attempting to work out their schedules to sign documents, meet the various attorneys, accountants, realtors, contractors and other persons and agree on the price, etc. the executor makes the decisions and gets the work done so the money and other property can be distributed.
Another reason to probate is that if the Will is not probated the property passes to persons other than those named in the Will. If there is no Will, Texas has a law that defines who receives the dead person’s property. These persons are called “heirs”. This determination can become very complicated and expensive. Sometimes the heirs and beneficiaries are the same. If the person who died was married more than once the results are frequently different.
A third reason to probate is because there a debts owed that need to be paid out of the estate. Frequently many of the assets owned by the person who died ( this property is called the estate) can be protected from creditors as “exempt” property by use of the Texas Estates Code. A “Dependent” Administration is a very effective form of asset protection.
This is not a complete explanation, but hopefully it gives you a good idea of the information that must be considered when deciding if probate is necessary or not. It is usually a good idea to consult an attorney experienced in probate to find out the best choice.