Dear Mr. Premack: My father left a written will that is only notarized and declares my mother beneficiary for all his retirement accounts and other finances. His employer has issued his remaining wages in the form of a check addressed to "The Estate of RM". We need to file the will in probate but think it is too costly. Is there a way for my mother to settle the estate for less money? The checks are the only reason we have to go to probate. Otherwise, the house and possessions are all joint owned and a clear cut beneficiary has been established. – SM

Your letter contains a variety of misconceptions; some of your statements may not be supported by the law. Let’s take them one at a time:

1. You say your "father left a written will that is only notarized."

State law recognizes only two types of Wills: formal and holographic. A formal Will is usually typed, must be signed by your father and by two witnesses, and must be dated. It does not need to be notarized to be valid. A holographic Will must be entirely in your father’s own handwriting, must be signed by him and must be dated. It does not need to be witnessed or notarized.

You never mention witnesses. Thus, the only way the document you identify as his Will can be legally valid is if he wrote it entirely in his own hand. If it is not in his handwriting, it is not an enforceable under Texas law.

2. You say the will "declares my mother beneficiary of all his retirement accounts".

All of the retirement accounts that exist today (like an IRA or a 401k) will have designations of beneficiary on separate paperwork that your father should have completed and given to the custodian of the accounts. Typically, retirement accounts are non-testamentary (meaning that the Will has no say in their distribution).

3. You say the "checks are the only reason we have to go to probate… the house and possessions are all joint owned".

In Texas, joint ownership of an asset does not automatically result in title to that asset passing to the surviving joint owner. The only way for joint ownership to change automatically is for the joint owners to agree, in writing, that there are survivorship rights.

Most jointly owned homes do not have survivorship rights. A husband and wife can create survivorship rights by following the requirements of section 451 of the Texas Probate Code. If they did not, the house is part of your father’s testamentary estate. If his Will is legally valid, probate is needed not only for the checks but also to transfer title to the house into her name. Preserving her ownership of the house is worth the cost of probate.

However, if his supposed will is not legally valid then his half of the house and the checks pass under the intestacy laws. If your father had children from a different marriage, they inherit his half of community estate (including his half of the house). But if all of your father’s children are from this marriage to your mother, state law gives her full ownership of his community property.