Texas Probate: Is it always necessary to probate a will?

As is the case with so many other legal subjects, the answer to this legal question is “it depends.” Assume a person has died with a will, and a relative possesses the will and has knowledge of the death. Under Texas law the person having custody of the decedent’s will is required to deliver that document to court. It must be presented to the court that has jurisdiction of the estate – usually a court in the county of the decedent’s domicile. What if no “probate assets” exist? Probate assets can be thought of as property that requires a change of title before ownership can be transferred. Such things include real estate, securities, vehicles, patents, and etc. A decedent’s ownership of such things cannot be changed to a new owner unless the probate process is followed. The processes are briefly described at Texas Probate: Rules & Alternatives. Where a decedent owned absolutely no “probate assets” and died without any unpaid debts, then there is often no purpose in probate. When there are no assets distributed by a will and no debts to be paid to any creditor, there is no point in presenting the will to a court. When there is confusion about whether there may or may not be some valuable asset that decedent might have owned, consider whether it is best to appoint a personal representative (executor) by taking the will to probate. Executors are provided power under the law to make inquiries and obtain answers. Persons who are not given that power by a court to represent a decedent’s estate can be ignored by third parties. A power of attorney and the authority it confers upon a person is terminated and ceases to operate when the principal dies – the paper becomes instantly useless. Thus, where there seems a necessity to make inquiries and obtain answers, only persons having authority under the law can effectively do such things. It might be best to pursue the probate process to obtain all the facts. Then, families can make final determinations about whether a decedent owned property or interests in property that are subject to a will. No will has any effect under the law unless it is submitted to probate.

Posted in Wills in Texas
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