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Do I Need to Probate?

Do I Need to Probate?

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

This firm has been confronted with an alarming number of questions in the last couple of months regarding the need to probate a Will.  There are a staggering number of people who believe that once they have hired an attorney to draft a Will that nothing else need be done.  Some people have stated, “I have a Will which clearly expresses my wishes, so why does my family need to go through probate?” This question ignores the underlying reason that we do estate planning.  Your Will is just that, an important part of your estate plan.  Probate procedures are the way that your executor follows the plan that you have made.


Estate plans, as defined in part by Blacks Law, are “instructions for estate asset distribution to heirs after owner/author’s death.”  That instruction, among other things, includes drawing up a Will, setting up trusts, and gifting property.


Probate is the primary way that your estate plan is put into action.  There are many widely held misconceptions regarding both Wills and probate, but some of the most common are as follows:

“Probate is a long drawn-out and expensive procedure that takes years to complete.”  This is simply not true.  In most cases in Texas, probate procedures can be completed in as few as 3 to 4 weeks depending on whether or not complex assets must be liquidated and how quickly your executor acts in furnishing data to your attorney.

“The executor that I have named in my Will has the immediate power to implement my plan.”  This again is not true. Your named executor does not obtain his/her power through the raw fact that you’ve appointed him/her. The executor is only clothed with the authority to carry out your estate plan after the Will has been admitted to probate by a court of competent jurisdiction and your executor has been issued what are called “Letters Testamentary”.  Letters Testamentary give your executor the authority to act with your property just as you could have done during your lifetime, but only to follow the instructions as set out in your Will.

“My wife and I own our home together, and it will automatically go to the surviving spouse when the first of us dies.”  Once again this may or may not be true.  Texas is a community property state; therefore, unless there has been a partition of community property prior to death or a transfer on death deed, the home that a married couple owns together continues to be community property.  Community property is owned as an undivided interest.  This means that down to every grain of sand in the front yard of your home belongs to each partner of the marriage equally.  When the first dies, the property then belongs one-half to the surviving partner and one half to the decedent’s estate.  The way you rectify this situation and place complete ownership in the second spouse is to probate your Will that leaves the property to the surviving spouse.  This answer is, of course, assuming that your Will was in order and left your portion of the community to the surviving spouse.  It should further be noted that if you die without a Will and you have had children through a prior relationship, then your community half of the estate does not pass to the surviving spouse, but instead goes to your children from that prior relationship to be settled by laws of intestate succession.

“If I have a trust, then I don’t need to probate a Will.”  This is true in a number of isolated cases but does not hold true in most cases.  In order for a trust to effectively distribute all the property in a person’s estate, all property of the estate must be in the trust.  In most cases, there will be assets not captured by the trust.  Most people do not hold the title to their house, automobile and deposit accounts in the name of a trust.  In those cases, a “pour-over” Will must be admitted to probate in order to follow the decedent’s wishes.  A “pour-over” Will is one that, when probated, gives authority to the executor to pass all property into the trust.

Just suppose what would happen if we did not have probate procedures requiring submitting your Will to a court of competent jurisdiction for recognition and authentication of its validity.  Anyone claiming to be your executor could deal with your estate after your death.  Imagine that you have a relative, “Johnny Badseed,” who makes a fake Will in your name, forges your signature and appoints himself executor and beneficiary.  Without the probate procedures that Texas has in place, he might be able to pass title to your home, your bank account, your automobiles your savings accounts and whatever other assets that he might find.  Without the courts to protect your interest and the interest of your family, there would be nothing to keep Johnny from absconding with your whole estate.

By probating your Will, the only person that could legally pass title to your property would be the person or persons authorized by the court, normally the person that you have appointed as independent executor.

Please keep in mind that your Will expresses your plan for how your property will pass after your death.   Probate is the execution of that plan.

These subjects are far too complex to adequately discuss each of the possibilities in this brief article.  If you have questions regarding how your property will pass at the time of your death, you are strongly encouraged to contact an attorney of your choice who is well versed in laws regarding Wills and probate.

James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see – www.houstontxprobate.com.

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