Dear Mr. Premack: My parents are living. They still live at home and are doing fine. One of their friends died and the family had to do a probate. What is probate and when is it necessary? Does it have to happen? What can be done to reduce the chances of needing probate? --K.S.
One part of Probate is the process of "proving" that a Will is valid. Another part of probate is distributing the remaining assets to the intended heirs.
When your Will is properly made, you are clearly aware of it. The witnesses are aware of it. Someone in your family may be aware of it. But the public at large does not know you made a Will, does not know what it says, and does not know if you followed the law when you made the Will.
That is the first reason why, after you die, the Will may need to go through probate. The named Executor hires the attorney to do the legal work for a probate. The attorney works to take the Executor in front of the Judge. The Judge, on behalf of the public, examines the Will and the facts to determine if the document before the court is really your Will. The public (or more likely some family member) is invited to object if they think the document before the court really is not your Will, or is invalid, or was signed under duress, or was replaced with a later Will.
The second reason for probate is to appoint a personal representative (called the Executor under a Will or the Administrator if there is no Will). The personal representative is given authority to collect your assets, pay your valid debts, settle your taxes, and distribute the remainder according to the instructions you left in your Will.
Probate has a statute of limitations. An Executor can be appointed by the court only during the first four years after you die. If the probate is delayed beyond four years, there must be a good reason for the delay (the court must find that there was no “default”), and then the Will only acts as evidence of the identity of the heirs. If the tardy probate would change who-gets-what, then the state says all the heirs must consent to the tardy probate.
What if there is no Will? If the decedent owned anything of value, their estate still needs probated. However, the state decides who inherits the various assets. Family members or interested parties hire the probate attorney when someone dies with no Will because the attorney knows what laws to follow and what court procedures to follow to help the survivors inherit. When someone dies intestate, it is more complicated so expect higher costs for the survivors to go to probate and to inherit. Having a Will saves time and money for your heirs.
Even with a Will, laws and procedures must be followed. The Executor hires the experienced probate attorney so the process can proceed smoothly. Texas has several different types of probate with different levels of complexity. The most common is "Independent Probate" where the Executor acts without Court supervision. If the Will does not allow Independent Probate, or if there is no Will, there will be a "Dependent Administration" with full Court supervision. (Even then, all the heirs can agree to and request that the Court allow an unsupervised probate.)
In my experience, the need for probate depends primarily on three factors:
1. The type of assets in the estate, not the value. Assets that rely heavily on paperwork to show ownership -- like stocks & bonds, real estate, and bank accounts -- tend to require probate.
2. The heirs' desire for clear and unquestionable title to inherited assets, and
3. Whether there were efforts made at avoiding probate by pre-planning. An experienced estate planning attorney has an arsenal of pre-planning tools that can help avoid probate. They include Survivorship Agreements, Beneficiary Designations, Living Trusts, Lady Bird Deeds, pre-death gifting, Life Estates, and others. Anything can harm if not done correctly. Do not try to do the legal documents yourself or use non-lawyer online services, as incorrect documents cause harm.
If you have specific questions about your estate and about probate, talk to Premack about your options.
Column published on July 27, 2021.
Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington State.