Real Estate

What happens if you don’t probate a will in Texas?

Usually, after the deceased leaves a will, it is put through the probate process. Doing so ensures that the distribution of the assets among the heirs happens fairly and according to the will. In short, the recognition of someone’s death, overseeing the payment of their debts, and asset distribution come via the probate process.

The probate administration ensures the protection of interests of both creditors and beneficiaries of the deceased’s estate. Sometimes, though, families want to avoid the probate process.

They may have their reasons – even though it is both simple and inexpensive to hire a probate attorney. In that situation, the family may choose an alternative option. Mostly, asset distribution occurs in the same way as it would have been with the probate.

Here is more information about what happens if you don’t probate a will in Texas:

The statute of limitations

The proceedings of the probate process start when the will makes it to the county’s probate court. People who submit it are either heirs, other beneficiaries, or estate agents. Along with the will, they also attach a cover sheet, an application, and the death certificate.

However, the laws of the state of Texas mandates that this must be done within the four years following the death of the will’s owner.

There are, of course, few exceptions to this. But in each case, the beneficiaries must prove that they weren’t at fault in failing to present the will for probate. For example, maybe the heirs didn’t have an inkling that a will exists. Or, its destruction or loss is why they couldn’t submit it.

Either way, there can be serious ramifications for the heirs for not putting a will into probate. However, when a will ends up in a court, the court and the probate lawyers then proceed according to state laws. For probation and probate lawyers, Texas State has a set of laws called “Texas Probate Code.”

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Assets for which probate is necessary

Any possessions that come with a deed or a title, such as real estate and cars, must undergo probate before distribution. However, in 2015, the erstwhile Lady Bird Deed was codified into the Revocable Transfer on Death Deed.

According to it, automatic transfer of property to the named persons may take place without probate if the deed is in place. The distribution of other assets will follow relevant provisions, such as the self-explanatory Transfer on Death and Pay on Death provisions.

These usually involve brokerage and bank accounts and supersede any contrary provisions within a will.

What occurs when the probate period is over?

Just as if there is no will, after four years, the state of Texas doesn’t recognize one if that duration lapses. After that, the process of intestate secession will take over. That means, regardless of the wishes of the deceased, a rigid formula will divide up the property among the heirs. So, the court will not entertain any special provisions.

An intestate succession may not be in the beneficiaries’ favor

Since the formula that the court will follow is rigid, the court will ignore any special provisions in favor of it. So, for instance, if the deceased had a desire to leave money to a favorite charity, the state will ignore it.

Consider another example of someone whose relative raised them but didn’t adopt them legally. Even though the will says the relative left everything to them, they may face dire consequences if the probate limitation has passed.

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Without the will, they cannot receive the full share of their inheritance. What’s more, they’d have to follow the Texas intestate code and track down all their cousins – since they would have all become 1/15th heirs.

Not only would the person be stuck paying considerable legal fees, but their inheritance would also remain tied up in the probate system for years. Thus, the probate of a will is much preferable.

Assets for which probate isn’t necessary

Non-probate assets, provided that the deceased named beneficiaries for them include:

  • Life insurance policies
  • Retirement accounts like 401ks and IRAs
  • Pension plans

Alternatives when you don’t want to probate a will in Texas

Muniment of Title

Based on the court-administered probate proceeding, the distribution would reflect the passage of the title. Given that there are no outstanding debts of the estate, this procedure will allow the assets to pass in the manner the will intends.

Affidavit of heirship

Affidavit of heirship is another of Texas’ statutorily authorized procedures. It only works if all three parties agree on it. Thus, it is better to get that agreement in advance before starting on the affidavit process.

If they do agree, the asset transfer will follow the facts set out in the affidavit of heirship document. It determines the beneficiaries’ heirship.

Final word

As evident, the administration of a will is complicated and expensive. Moreover, you must also follow the many notices and filing requirements that are part of the probate process. Failure to do so can often result in harsh consequences.

Hence, it is better to receive guidance from a reputable and expert in matters of probate.

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