Probate: The How, What, and Why

The death of a loved one is an extremely difficult time for all family and friends of the deceased. Without the family member alive to state how he/she would like personal property and financial assets distributed, dissolving an estate between children and heirs can be an extremely daunting task. Thankfully, individuals who pass away with a Will put their family in a much easier position: the Will describes how the decedent wants property divided and who he/she would like to oversee the administration process (aka: the Executor). With these major questions answered by the Will, the probate process is significantly less challenging.

Once a loved one does pass away, the primary issue to resolve is finding the original Will. Most individuals keep their original will in a safe deposit box or other secure location with personal documents. In Texas, Executors have up to 4 years from the decedent’s date of death to probate the will. Meeting this statute of limitations is extremely important in order to ensure property and assets are distributed in accordance with the loved one’s wishes.

What do I need to probate a will?

Probate is the formal process of transferring property from the decedent to his/her family and loved ones. Any individual who passes away with assets in his/her name such as a bank account, house, vehicle or boat, or retirement account will require probate. In most states including Texas, the original will is required to begin this process. An experienced attorney can be exceptionally helpful guiding family through the probate process in a way that is compliant with state and federal law.

Why is probate necessary?

Probate is necessary in order to legally transfer financial accounts, vehicles, houses or personal property to other individuals. Without probating an estate within 4 years, the decedent’s final wishes will not be met. This process is also required to ensure assets are distributed in a fair manner and any charitable bequests are fulfilled. Depending on the value of assets in the estate, an attorney may recommend pursuing independent administration, Muniment of Title, or Small Estate Administration. Different methods of probate ensure each estate is administered correctly, in a timely manner, and without burdensome costs.

What if I don’t probate in time?

If a will is not probated within 4 years from the date of death, administration can be chaotic. For example, if a dad dies but the family does nothing, it is extremely difficult to then probate once the mom dies years later. If a will is not probated within 4 years, then the law allows for the Will to be probated as a muniment of title, but that method of probate is not always available.  When a muniment of title is not available, then the Texas laws of intestacy will govern how assets are distributed. This means that regardless of what the decedent wrote in his/her Will, the state law will determine what happens to financial assets and property. It is best to contact an attorney as soon as possible after the death of a loved one in order to meet any legal deadlines and start any necessary probate proceedings.

Anyone who has lost a family member or close friend knows how difficult it can be to handle the emotional stress during a time of grief. Finding an experienced attorney to assist with the probate process can provide you with peace of mind during this tough time. Contact us today to learn more about how we can help your family through times of loss.