What is Probate? Is It Always Necessary?


To probate is to prove a will in front of a probate court to find that it’s authentic and valid, so that the instructions and provisions in that will can be carried out. Probate court also covers when a person dies without a will and will determine who the heirs are and how that particular estate is going to be administered.

What Are Some Common Misconceptions That People Have About The Probate Process?

One of the biggest issues I find is that for a couple, particularly if they’ve been married a long time and one spouse dies, the other spouse will often not do anything about probate because it doesn’t really affect their life. They can continue to live in the house. All the bank accounts were joint, so even if there is a will, they just don’t do anything. The problem that they don’t understand is that, particularly when it comes to real property, you don’t have clear title unless you do something related to probate. That’s either a problem for them down the road, when they decide they want to move out of the house they’ve lived in for the past 30 years, or when they pass away and the children have to probate Mom and Dad’s estate. People think that title just passes automatically and it doesn’t.

Another misconception is that everyone thinks probate is difficult and takes forever. In reality, when you have a good estate plan, you pay the money up front, have a good will, and either avoid probate or have to attend one thirty minute hearing. Sometimes, just having enough money for your relatives to be able to pay off some small credit card debt beforehand means you don’t have to go through a full blown probate process. Texas really has a lot of very economical options for probate that are not hinged upon the size of your estate. There are definitely some other states where the cost of probate is linked to the size of the estate and that is not at all true in Texas.

We always plan and draw up documents, just in case you do have to go through probate. Some people create a trust and then fail to transfer all their assets into the trust. Or, the trust they inherited wasn’t accounted for when they did their estate plan. We plan for the worst but expect the best and we want to minimize costs. You could totally avoid probate but we still always plan as if you might have to go to probate.

Another thing that the general public does not know is that you really need to initiate probate of a will prior to four years after the death. In fact, it really should be no less than three years and eight months after death because you need to be appointed as executor prior to the four years. It gets much more complicated after four years.

How Do I Know If I Am Going To Have To Go Through Probate?

A lot of people don’t know they need to probate until they go to sell an asset. The title company says that the deceased person still owns part of the house. They call an attorney and ask how to remove the person from the deed. You can’t do that. You have to probate that estate. Some title companies will do what’s called an affidavit of heirship, but you can’t do that if the deceased had a will. You’re supposed to do some sort of probate action on that will. If someone dies, consult with a probate attorney. Grieve, get their burial taken care of, and then give one a call.

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