If I get a will, I don’t need to go through probate, right?
Actually, a will doesn’t have any effect when you sign it. A will is an inchoate document, meaning that “other stuff has to happen” before it has the authority to dispose of your estate. First, you have to die. Next, the probate court has to review it, make sure all “interested persons” get notice that somebody wants to probate it, and then issue “letters testamentary” to the executor.
My dad just passed away yesterday and I’m the executor. How soon do I have to probate his will?
Bury and honor your dad. Don’t worry about the probate process for a few weeks at the very least. Texas law allows four years to probate a will. Now, most people won’t want to leave things unfinished that long, but the point is that absent some special circumstance, there’s not a huge sense of urgency to probate a will.
My spouse passed away and she never made a will. I just get everything, right?
This might be the most persistent myth about inheritance – that the surviving spouse inherits all of the dead spouse’s stuff. The fact is that with no will (what’s called an “intestate estate”), the Texas Estates Code determines who gets what, and it’s rarely the way you think it is. For more information on Heirship proceedings, click here. More information on why it’s really good to have a will.
My dad passed away a couple of weeks ago. He gave me a copy of his will but nobody can find the original. What do we do?
There is a procedure for probating a lost will, but it’s quite a bit more complex than just submitting a copy of the will to the probate court. When you can’t submit the original and the person with sole control over it was the person who wrote it, the presumption is that the person destroyed or revoked it. That means the burden of proof is on the person submitting the copy to prove BOTH that it’s a true copy of the original AND that the deceased person didn’t intend to revoke the will. If this is your situation, it’s a good idea to consult with an experienced probate law firm to discuss your options. Make an appointment with Dana Jacobson or his office staff to talk about your situation.
I’m trying to sell my mom’s house (she died) and the title company says they need some kind of legal letter before they will schedule the closing. Can you write the letter for me?
What the title company needs are Letters Testamentary, which are issued by the probate court when a will is accepted for probate. If there’s no will, the court will issue Letters of Administration after there’s been a determination of who the heirs of the deceased person are. These letters show that the person to whom they were issued is authorized by the court to handle the estate of the deceased person.
How long will it take to probate my dad’s will?
As my granddad, Tom Hill Miller, used to say, “How long is a string?” The length of time any probate matter takes varies with the facts of the case. Some can be as short as two months or so, some last years. Some of the questions we ask (by NO means all) are: Was the will properly executed? Will anybody contest the will? Do you have the original? Is the executor local or remote? How much real estate is involved? Are you keeping the real estate or selling it? Did the person leave debts? What kind? Secured or unsecured? Is there a charity named in the will? You get the idea: Call the firm to get a better idea of the length of time your particular matter may take.
All my mom left was a bank account, do I need to probate her will?
It depends (hey, I’m a lawyer…). Was there anybody else on the account? Was it a joint tenant with right of survivorship (JTWROS) account? If so, you probably won’t need to probate the will. Likewise for pay on death (POD) and transfer on death (TOD) accounts, if the named beneficiary is still alive. However, if there’s no beneficiary named, unless the bank has a “next of kin” clause, the bank will only issue a check to “The estate of” the owner, and since there has to be an estate that can cash the check, the will probably needs to be probated. Again, “change the facts, change the answer.” Contact the firm to schedule a phone call or office visit.
My sister deeded me her house with a transfer on death deed. She died last week. Does that mean I own it?
Generally, the answer is yes, unless she filed a revocation of the transfer on death deed (TODD) in the deed records or sold the house. Either of those actions would void the TODD. When the grantor of the deed passes, we normally file a “suggestion of death” or “notice of death” in the county deed records where the property is located, just to make it clear to anybody investigating the chain of title that the grantee under the TODD is now the owner.