Probating A Will

//Probating A Will

Probating A Will

When a person dies leaving a Will, the named Executor (or alternate Executor depending on the circumstances) has 4 years from the date of death to bring the Will to probate. Many of the issues common in probate can be avoided simply by probating the Will in a timely manner. A common misconception is that the spouse is the named Executor and receives everything under the Will so probate is unnecessary. However, many do not realize that a Will is not effective if it is not probated.

What should I do if I am named Executor?

As the named Executor under a Will, you should first try and locate the original Will, rather than just a copy. While it is possible to probate a copy of a Will, there are many additional requirements to be met and it can be more expensive. The original Will is preferred. Once the original Will is located, you should schedule an appointment with a competent probate attorney to discuss the probate process. It is generally helpful if you have an idea of the assets in the Estate.

What if it has been more than 4 years?

The Texas Estates Code §256.003 requires that a Will be probated within four years of death “unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years…” There is some case law that finds the applicants not in default for various reasons, such as believing probate was unnecessary and not affordable. Regardless of the reasons, if the applicant is found to not be in default, then a Will can be probated as a Muniment of Title only. There is not an option of receiving Letters Testamentary. This means that if there are other assets in the Estate besides real property, then you will not be able to probate the Will after 4 years.

There are bank accounts involved, so what do we do now?

If it has been more than 4 years since the Testator’s date of death and there are additional assets in the Estate besides real property, it will be necessary to apply for an administration and, in some cases, determination of heirship. Some Courts will allow an application for administration without the necessity of determining heirs. There may be other options available to you depending on the specific facts of your case. You should always consult with legal counsel to discuss the right option for your case.

By |2018-11-11T17:34:07+00:00June 22nd, 2018|blog|

About the Author:

Ronda S. Haynes is a North Texas Attorney dedicated to her clients and their needs. Working with due diligence to help North Texas families throughout the legal process. Every client deserves quality representation with honesty and integrity.
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