I think it was Ben Franklin who said, “The only sure things in life are death and taxes”. Both of these may have significant legal consequences.
For most of us, the first time that we have ever thought about probating a will is when someone in our family has died.
So, what does it mean to probate will? What about when there is no will? And why is it important? Here are some basic things to know about probating an estate.
- Probate means “to prove”. Probate is a process that proves up whether or not a will is valid, if a will does exist, and it also proves who is legally entitled to inherit according to the will or according to the law of the state of Texas.
- Legally, a deceased person may not own property. The moment a person dies, the property is in a state of limbo. It must then be proven in court as to the rightful owner(s).
Having a will does not automatically transfer property. If the deceased
has left a will, the probate court’s role is to evaluate it, to
make sure that the will is valid and meets all the statutory requirements.
It must have certain language, and it must have been executed properly by the testator and by the witnesses. The rules stating whether a will is valid are specified in the Texas Estate’s Code. In Texas, a will must be probated within 4 years of the testator’s death.
- If the deceased did not leave a will, then the role of the probate court is to determine who the legal heirs are. The laws of consanguinity determine which heirs are entitled to inherit, based upon the relationship to the deceased.
- In the probate process, someone must be appointed to administer the estate. The court will appoint an executor if there is a will, or an administrator if there is no valid will.
Real and personal property are transferred to the people that are entitled to receive it, either through a valid will or according to the Estates code. Certain procedures must be followed. It is a process that takes time depending on the complications of the estate.
In the meantime, creditors of the deceased need to be determined, and bills need to be paid, which is a function of the administrator or executor.
Every estate is a different. Family history, personal history, financial history, and what property is owned are all factors to be evaluated. Failure to file a probate in a timely manner can complicate the estate and make the sale of property at some point much more difficult.