Do I Need to Probate a Will?

Main Takeaways:

  • Texas requires a will to be probated after an individual’s passing and also requires an attorney to represent the will, except in cases of “independent administration”.
  • Probate is a legal process used to review a deceased individual’s will, pay the outstanding liabilities, and distribute property to the individual’s heirs.
  • Most probate cases last between 3 and 6 months, but can take longer if disputes arise.

Does a Will Have to be Probated in Texas?

Texas law requires a deceased person’s assets to be distributed according to a specific procedure, known as probate. For this reason, when a loved one dies, the will must typically be probated before the assets can be distributed to you or any other heirs.

What is Probate?

Probate is a legal procedure used to review a deceased person’s will, pay his or her outstanding liabilities and distribute his or her property to heirs. Most estates in Texas must undergo probate.

However, some estates may be exempt from probate, depending on how the assets in question are owned. In some cases, estates may also qualify for simplified probate proceedings. In general, it is best to consult an attorney if you aren’t sure whether probate is required for a given will.

In 2018, there were 105, 697 probate cases filed, comprising about 9% of the total Texas civil caseload.

The probate process usually begins when someone submits the decedent’s will to the court. At this time, the court will seek to validate the will. Once the will has been validated, the court will appoint someone to administer the estate and oversee the probate process. This person is known as an “executor.”

In many cases, the executor will be named in the will. After an administrator has been appointed, he or she must inform all of the decedent’s creditors of the individual’s death. He or she will then pay off all valid claims and distribute the remaining property in accordance with the will.

Do I Need an Attorney?

Most Texas courts require a will’s executor to be represented by an attorney when completing the probate process. However, in limited circumstances, executors may be able to probate a will without legal representation. This is known as “independent administration.”

To qualify for independent administration, an estate’s will must specify that the executor should act independently, or all of the estate’s heirs must agree to allow the executor to act independently.

In 2018, 43 percent of probate cases filed were estate cases involving an application for independent administration.

If an individual’s estate does not qualify for independent administration, the executor must seek representation from an attorney. If you aren’t sure whether an estate qualifies for independent administration, ask a qualified probate attorney to review the will and explain your options.

How Long Does Probate Take?

Most probate cases are three to six months in length. However, if disputes arise, the process may take longer. In most cases, a will can be admitted into probate court in as little as two weeks.

Keep in mind that, if you are involved in a probated estate, hiring an attorney is highly recommended. Even if you think the estate may qualify for independent administration, having an attorney can help to ensure that the process goes as smoothly as possible. Probate laws in Texas can be confusing, but an attorney can explain these issues and help you make the right choices throughout the process.

Do I Have to Probate a Will in Texas?

In some states, a will does not need to be probated. Texas is not one of those states and requires a will to be probated after a loved one’s passing. Life insurance or jointly-owned assets are considered non-probate assets, so they are not required to go through the probate process. Other assets, like personal property and vehicles, however, usually require probate.

If you have been named an executor in a loved one’s will, or if you are otherwise involved in a probate case, please contact Forbes & Forbes.


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