Understandably, a lot of people want to avoid probate. The legal probate process happens through the state courts. As a result, it is a public process that can be time-consuming and costly. Although there is no requirement to probate a deceased person’s estate in Texas, probate may be necessary to receive an inheritance.
Probate and estate administration provide the process to collect the money and property of the deceased person and distribute it to the legal heirs. What a lot of people don’t know (especially if they don’t bother to ask!) is that Texas imposes a time limit for asking for a probate and estate administration. The general rule is that there can be no estate administration 4 years after a person’s death. In other words, anyone who has a reason to collect the money and property of a deceased person should ask permission to do so within 4 years of a person’s death! In Texas, if you fail to seek a probate within 4 years and it later becomes necessary to probate a deceased person’s estate, you will have to prove to a probate court the reasons you need the estate administration.
A good example where this situation might occur is if a bank account or other type of property owned by the deceased person is later discovered and needs to be collected or sold. Although real estate records are a matter of public record, ownership of banking and other financial accounts are not. Sometimes legal heirs, or beneficiaries under a Will, do not learn about the existence of a deceased family member’s financial account until years later, after a bank makes contact and informs them of the existence of the account. In such cases, it may be possible to show the probate court there is both a need for estate administration, and an objective reason for the delay in seeking probate.
However, the rules are slightly different if the deceased person died and had made a Will. Beneficiaries of a Will must pay extra attention to the 4-year rule because Texas caselaw provides that in certain circumstances, a probate court can deny a Will to probate. Normally, the person who can offer the Will for probate is the named Executor. Under current Texas probate law, if the named Executor had a valid original Will in their possession and failed to seek probate of the Will within 4 years of the person’s death, they may be found in “default”. That means they cannot ask the court to admit the Will to probate after 4 years. This could be particularly troublesome for a named sole beneficiary under a Will, such as a spouse.
Spouses are most commonly the first and sole beneficiary of a Will and also the most likely to neglect probate. This may be due to a number of factors including extreme grief over the loss of their partner, but also because of joint title or ownership in bank accounts or real estate. Many spouses incorrectly believe that jointly owned property passes to the surviving spouse automatically. However, this is not true in Texas where we have “community property” laws. Texas is one of a minority of states that gives spouses an undivided and equal interest in marital property to each spouse. Accordingly, each spouse also has the right to dispose of their undivided interest as they see fit. The result is no “automatic” right of survivorship between spouses in Texas. When a Will cannot be offered for probate, Texas intestacy laws apply to inheritance. Under the Texas intestacy laws, children from the deceased spouse inherit alongside the surviving spouse. Therefore, the failure to probate a Will within 4 years could result in an unintended joint ownership of assets between spouse and children.
After the death of a loved one, family members should seriously consider whether they need to undertake the probate process. It is a good idea to consult a probate attorney within the first year after someone’s death to determine whether a probate may be necessary. When speaking to a probate attorney, be prepared to let them know where the person died, when they died, and to identify the property and assets you think they owned, as well as any debts.
Be sure to also advise your probate attorney if you think there is a Will, and also of any circumstances where family members may not be agreed. When the next of kin of a deceased person are not agreed about probate, this may create costly complications in the probate process. Disagreements can arise about who should be in charge of the estate administration (the role of executor or administrator), or who gets to take a distribution of money and property from the estate. When there is no Will, there may be disagreements as to the identity of the family members entitled to inherit. Talk to your probate attorney about any family relationships, particularly an alleged spouse or child, who were never declared or formalized during a person’s lifetime.
Once you have gathered and provided all of this information, an experienced probate attorney should be able to advise you about whether a probate will be necessary to collect the deceased person’s assets, the estimated costs given the family circumstances, and the likely outcome (whether a probate and estate administration will be granted). In some cases, there may be an alternative to probate. Your probate attorney can advise of these options too.
Our firm’s experienced probate attorneys assist prospective Executors and Administrators with understanding the probate process. Don’t delay, contact our office today to understand whether you should probate your loved one’s estate.
