Legal Issues: Common Probate Questions

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

Ordinarily, this article strives to cover only one subject at a time, but this month it has been decided to provide short answers to some of the common questions asked by many persons going through a probate proceeding. There is no particular logic in the arrangement of the questions.

WHAT IS PROBATE AND WHY IS IT NEEDED? According to Black’s Law, “Probate is a court procedure by which a Will is proved to be valid or invalid; through current usage, this term has been expanded to generally include all matters and proceedings pertaining to administration of estates, guardianship, etc.” The definition, however, does not completely explain why it is needed. Imagine if you will, a family that has a surviving spouse and two children whom I will call “good kid” and “bad kid.” Bad kid takes it upon himself to forge a Will which pretends to be his father’s, giving all of father’s property to bad kid. If there is not some sort of procedure that can examine that purported Will and determine whether or not it is valid, then bad kid could get away with stealing his father’s estate, leaving his mother and the good kid to live in the streets. I know this is extreme, but it is certainly within possibility without courts to clarify what is real and what is not real in the testator’s wishes.

WHERE IS THE PROBATE TO BE FILED? The easy and immediate answer to this question is in the county where the decedent resided, but under some circumstances this is not always true, depending upon whether or not the decedent resided in this state, or resided in another state and had substantial assets in Texas. (Estates Code 33.001.)

BURIAL INSTRUCTIONS. Many people wish to include burial or cremation instructions in their Will. Because family members do not typically run to the courthouse to file a Will for probate in the first few days following death, it is better to include burial/cremation instructions in a separate document. A recommended form through Health and Human Services addresses disposition of remains, if required. The logic in this is fairly apparent. If you die and your Will is not probated until four years later, hopefully, your family has not kept you lying in state for the four-year term.

HOW DOES DIVORCE AFFECT MY WILL? When a couple gets a divorce and they prepare Wills prior to the divorce in which each is wholly or partially a beneficiary of the other’s estate, those bequests and devises become void. Interestingly enough, however, if that same couple marries again at a later date and subsequent marriage is in force at the time of death, the bequests and devises in the original Will may be revived, but not under certain conditions involving mental health. (Estates Code 123.001, 123.002 and Subchapter C following.)

DOES PROBATE AUTOMATICALLY PASS TITLE TO REAL PROPERTY BETWEEN SPOUSES OR TO OTHER BENEFICIARIES? Yes and no. It depends upon the type of probate done. If the probate was done as a muniment of title, then a certified copy of both the Will and the court’s order may be filed in the real property records of the Texas county in which the property is located. This record provides sufficient information for a title company to write a policy to guarantee title. If, on the other hand, the Will is probated as an administration, then the executor should prepare an executor’s deed to pass title. This is often confusing between married couples when both names are on the original deed. To understand the need for this seemingly extra step, you must realize that Texas is a community property state, and that an undivided one-half interest in every grain of sand in the yard and every splinter in the house belongs to the decedent’s estate and the other half to the survivor’s estate. To accomplish the goal of having total title vested in the survivor, the deed is necessary. It should be noted that it is possible to avoid this result by planning which involves a transfer on death deed done during the lifetime of the beneficiary and the decedent.

IS MY EXECUTOR REQUIRED TO BE A RESIDENT OF TEXAS? No, your executor does not have to be a resident of Texas, but before he/she can serve, he must appoint a resident agent of service in the state. Appointment of resident agent is a very simple process, and most attorneys, in my experience, are willing to serve in that capacity without charge.

WHAT IS A CODICIL? Black’s Law defines codicil as, “A supplement or an addition to a Will; it may explain, modify, add to, subtract from, qualify, alter, restrain, or revoke provisions in an existing Will. Such does not purport to dispose of the entire estate, or to contain the entire Will of the testator, nor does it ordinarily expressly or by necessary implication revoke in toto of a prior Will.” It simply makes changes, and then republishes the prior Will along with the changes.

Who is the custodian of a Will and does he or she have a duty to tender the Will? The custodian of the Will is the person who actually has physical possession of it. It is not uncommon for one person who has physical control of the original Will to be unwilling to release it to the executor or beneficiary. This may be because a prior Will was more advantageous to that person or for one reason or another they just don’t want to go to the trouble of filing the Will for record. If that person is encountered, Texas Estates Code offers a solution. The solution involves the filing of a sworn complaint in the court that has jurisdiction of the estate and having the reluctant custodian served with citation to appear in court to show cause why the Will has not been produced. Upon return of that citation, if the custodian does not either produce the Will or show sufficient cause why he/she cannot produce the Will, then the judge may have the person arrested and confined until they produce the Will or other papers. (Estates Code 252.202 and 252.203.)

The above article contains only a few of the common questions often asked at the time of probate. If you are faced with settling the estate of a loved one, you will need to contact an attorney of your choice to act as your guide through the probate process.

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-



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