To Probate vs. To Not Probate – Should You Avoid It?

One of the more difficult decisions that must be made after the death of a loved one is whether or not to probate the will.  

For our purposes, assume the will was properly drawn under the Texas law.   The person who made the will is known as a testator (male) or testatrix (female).  The person named as the administrator in the will is an independent executor (male) or independent executrix (female).   For our discussion, we will assume that both people are male. 

Probate is the court process where the will is proved to be valid and the executor is qualified and appointed.   After the hearing, the executor gets a document called “letters testamentary.” The executor must present the letters to show he is authorized to deal with the testator’s probate estate.  

What Happens Throughout The Probate Process?

So our first inquiry has to be whether there are any assets or debts that will fall under the probate estate.  If there are, then the will has to be probated.  

Begin by compiling a list of assets.  Non-probate assets fall into several categories. An asset that was held jointly with a right of survivorship goes straight to the survivor.  An asset with a beneficiary designation goes directly to the beneficiary. The testator may have left a survivorship agreement, which will also directly transfer an asset.  

To collect these, the survivor or beneficiary shows the company a death certificate to claim the asset. 

 If the testator left his real property under a Transfer on Death Deed, then the transferee simply files an affidavit in the deed records to receive good title.  

Assets left in a trust usually pass outside of probate. 

The second prong is determined by a community property analysis.  If the testator left a surviving spouse, then a probate may be necessary to grab the survivor’s undivided community interest in assets that were otherwise directed to a third party.

If there are any probate assets, then the will must be probated to pay debts and transfer the assets to the beneficiaries named in the will.  

What About Any Debts That Were Left?

As for debts, they must be analyzed by type, maturity, collateral and guarantee agreements.

Aside from paying debts and distributing probate assets, there may be other reasons to probate a will and appoint an executor.   The post office requires that an executor be appointed before it will forward the testator’s mail. Lawsuits involving a testator require the appointment of an executor to continue.  The IRS prefers to deal with an executor. The testator’s surviving spouse or disabled child may want to assert a statutory widow’s allowance or other right in the probate.  

Probate may also be necessary to resolve disputes about the testator’s last minute change of beneficiary or survivorship designations.  Murder, divorce and dying before the testator (or within a statutory or contractual period) can void a beneficiary/survivor designation. 

The “to probate or not to probate” analysis can be tricky and hyper-technical.  A good probate attorney is a must to help you sort through the options.  

Virginia Hammerle is a Texas attorney with Hammerle Finley Law Firm.    Sign-up for her newsletter at legaltalktexas@hammerle.com.  This column does not constitute legal advice.