Is It Always Necessary to Probate a Will in Texas?
It is necessary to probate a Will in Texas when the estate includes assets titled in the decedent’s name.
A person who dies typically has two classes of assets: probate assets and non-probate assets.
- Probate assets are property titled in the deceased person’s name. For example, if the decedent owned a house in his name alone, that would be a probate asset.
- Non-probate assets are assets that pass to beneficiaries pursuant to contract. One example of a non-probate asset is an insurance policy. If the decedent designates a beneficiary, the proceeds of the insurance policy will pass to the beneficiary outside of probate.
Why is Probate Necessary?
The Texas Estates Code specifically says that Will is not effective to prove title to or the right to possession of any property disposed of by the Will until the Will is admitted to probate.
Having a Will that has not been probated will not give beneficiaries the right to access the decedent’s accounts, or sell the decedent’s property. Institutions where the decedent held accounts, and individuals who may want to purchase the decedent’s property want assurances that the Will is valid. They will not release accounts or purchase property without the assurances the court proceedings provide.
How Does it Work?
Probate is the process of validating a Will in order to make it effective. The statute of limitations for initiating the proceeding is four years.
The probate process starts when an executor files an application with the court. A judge will evaluate whether the Will is valid under state law. If the judge determines that the document meets the requirements of a valid Will, the judge will enter an order admitting the Will to probate. The Will then becomes part of the public record so that all who need to know have assurances that the decedent died leaving a valid Will.
Texas has one of the simplest probate processes in the nation. If the Will requests independent administration of the estate, executors typically have to make only one appearance before a court.
During that appearance, the court will issue Letters Testamentary to a qualified independent executor. Letters testamentary authorize the executor to act on behalf of the estate. The executor will then be able to gather assets, pay off legally enforceable debt, and distribute the assets as specified in the Will without court supervision.
Can You Transfer Property Without Probate in Texas?
Probate is not necessary for some types of property. For example:
- Life insurance proceeds, IRAs, pension plans and retirement accounts that pass directly to designated beneficiaries.
- Property held in accounts with others as joint tenants with rights of survivorship pass directly to the survivors without a court proceeding.
- Property held in trust will pass under the terms of the trust.
- Transfer on Death Deeds and/or Lady Bird Deeds transfer title to real property to the beneficiaries named in the deed.
However, when ownership of the decedent’s property is evidenced by title, that property cannot be sold or transferred until the decedent’s name is removed from the title. Probate records become a link in the chain of title, demonstrating that the decedent’s property has passed to someone else.
This article was initially published on July 19, 2010 and updated on May 17, 2024.
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July 19, 2010 at 3:47pm
[…] This post was mentioned on Twitter by Rania Combs, Russell Oxford. Russell Oxford said: RT @raniacombs: My new post: Is Probate Always Necessary? https://bit.ly/9UypRh […]
Am I Entitled To See A Copy Of A Will – Texas Wills & Trusts Online
January 10, 2013 at 9:10am
[…] has jurisdiction over the estate after receiving notice of the death of the testator. This section does not require the Will to be probated; rather, it’s concern is preventing someone with custody of a Will from suppressing […]
Les
June 10, 2016 at 6:23am
My father has not made a will. He has two children: my sister and I. We have a cousin who will try to get as much as he can from the estate, such as physical property, in the event our father dies. Would our cousin have any right to claim any of the estate?
Rania Combs
June 15, 2016 at 10:11pm
The following article explains how property is divided when someone dies without a Will in Texas: Dying Without a Will: The Texas Intestacy Statutes.
Christy Blackburn
November 4, 2016 at 10:56pm
My dad just passed away Wednesday. He didn’t have a will. He was married and I’m an only child. I also have a durable power of attorney on my dad. Does everything go to my mom?
Rania Combs
November 30, 2016 at 4:07pm
The following article describes how property is distributed when someone dies without a Will in Texas: The Texas Intestacy Statutes.
M A Lewis
August 2, 2017 at 9:44am
As a general interest question, is a listing and the value of all assets a requirement for a valid will in the state of Texas?
(This topic has been debated recently among a group of friends).
Rania Combs
August 24, 2017 at 5:29pm
There is no requirement that one list each item of property or the value of each item in a Will. Often, Wills distribute property by virtue of a residuary clause that simple specifies how all property not specifically disposed of should be distributed.
Ginny
October 8, 2017 at 6:06pm
My father passed away and in his will it states his home should be sold and money split among his children. Since we all agree to this do we have to probate his will before selling?
Rania Combs
October 9, 2017 at 10:01am
Probate is the process in which the judge declares that a Will is valid and makes the Will part of the public record to give notice to the rest of the world that the testator has died and the property has been transferred according to the terms of the Will. Probate becomes the link in the chain of title to show that the property has passed to someone else.
Edward
July 22, 2018 at 6:55pm
Q: Now, both parents are deceased-Dec 2014 and July 2018. Will was not probated from 2014 placing real property to surviving spouse. I understand legal counsel is best option- what course of actions are possible since both deceased.
Rania Combs
July 29, 2018 at 11:29am
I recommend that you consult with a lawyer in your community for advice on the best course of action.
Riley
August 7, 2018 at 3:45pm
My mother passed away recently and has a will that states all assets are split between my brother and I. Our dad passed several years ago. My question is we are going to sell her house and car, since these are in her name do we have to probate or is the death certificate and will enough!
Rania Combs
August 10, 2018 at 5:52pm
If title is held in the name of a deceased person, probate is necessary to transfer title to the beneficiaries.
Brenda
September 6, 2018 at 1:25pm
My father’s will was completed and signed in New Mexico. He now lives in an Assisted Living Facility in Texas and suffers from dementia. Is his will valid in Texas?
Rania Combs
September 10, 2018 at 10:24am
The following article may answer your question: Is a Will I Signed In Another State Valid in Texas?
Peter
December 6, 2018 at 4:11pm
I have just one adult child (no spouse) and he alone will inherit my whole estate (no debt — just a Texas house, car, and some investment money). Should I still leave a will? Maybe holographic? I want to make the probate process easy for my son, but doing the whole notary/witness thing will be difficult for a sick old guy like me. I purchased NOLO’s program just to see what a will should cover; the results are pretty sparse with my simple situation. Given that I can’t imagine anyone contesting my son’s claim, what general path would be easiest on both parties? I’m wondering if no will at all might actually be better than a less-than legal document.
Rania Combs
December 7, 2018 at 11:32am
A will ensures that your property will pass according to your wishes. It is possible to execute an attested Will in your own home by engaging a mobile notary and inviting friends or neighbors to serve as witnesses.