6 Common Misconceptions About Wills and Probate

In my 40 plus years of practice the same misunderstandings keep coming up concerning wills. This article is to help clear up some common issues about how and when wills work.

How Wills Work and When They Go Into Effect

Wills don’t go into effect until the will has been admitted to probate. No other common legal document must be approved by a court to go into effect, but wills are the exception. A will has no legal effect until the Judge signs the order admitting it to probate.

Wills don’t pass ownership of everything. Passage of ownership on death of the owner can pass by right of survivorship or beneficiary designation.  Most retirement plans pass to a named beneficiary and the will does not apply. Many bank accounts pass to a joint tenant with a right of survivorship, that is to a co-owner of the account or to a payable on death beneficiary.  In Texas and many other states there is a transfer on death deed and transfer on death automobile title that passes ownership on death outside a will.

Wills and Executors

Being named as executor in a will doesn’t make you the executor. A will nominates an executor, and the Judge appoints an executor. You become an executor when the Judge signs an order appointing you as executor and you take the oath and post any required bond.

Letters Testamentary is not a letter someone writes. Letters Testamentary is a certificate from the Clerk of the Court certifying that the will is admitted to probate and the executor is appointed and has qualified. It is an executor’s proof that he or she is the executor.

If you have questions about how and when wills operate please seek advice from experienced legal counsel.

Robert is an Elder Law, Estate Planning, Guardianship and Medicaid Attorney at Hammerle Finley Law Firm. If you are interested in knowing more, come and visit our Lewisville attorney firm location, we can help.

The information contained in this article is general information only and does not constitute legal advice. ©2019