Time Marches On | Probate Starts Immediately After Death

 

Last will and testament form

Seconds, minutes, hours, days, weeks, months, years.

The moment of death marks the end of time for the decedent, and the beginning of time for his or her probate estate.  After death, sometimes things have to happen pretty quickly to preserve the estate or evidence.

Here are just a few of the actions that can take place.

At any time after death, the court can order an examination of documents in the decedent’s safety deposit box.  This is especially crucial if there is a suspicion that the decedent had used it to store burial instructions or his or her will.

Immediately upon being notified of the death, a person holding the decedent’s will is required to deliver the will to the clerk of the court with jurisdiction of the decedent’s estate.

At any time after death, an “interested person” can file for a temporary restraining order to stop someone from taking a wrongful action regarding the decedent or the estate.

At any time after death, any person can apply to be appointed temporary administrator of the decedent’s estate.  This may be necessary to preserve the assets (to take possession of a house, or to keep relatives from walking off with valuables).  A temporary administration, if granted, can last up to 180 days.

Qualified Persons

Between three and 90 days after the date of death, a “qualified person’ can file an emergency application for payment of burial expenses or access to property storage.

At any time after death, the named executor or a beneficiary or a creditor can file an application for probate of the decedent’s estate.  If there is a will, then the application has to be filed within 4 years of death.  Otherwise, a proceeding to declare heirship or an application for an ancillary probate of a foreign will can be filed at any time.

At any time after death the proposed executor or next of kin can apply to limit the deceased spouse’s burial or cremation decision.  The applicant has to prove that there is “good cause” to believe that the survivor is implicate din the spouse’s death, or that an indictment has been filed against the survivor for family violence in the death of a spouse.  Obviously, the sooner this application is filed and ruled on the better the chances that the bad action can be stopped.

What If no one applies for probate?

Ninety days after death, if no one has applied for probate and there is no known will, the court can order any financial institution to release information on the balance of each account that had belonged to the decedent.

Within 1 year after death, an “interested person” can file an application to declare the decedent’s marriage void based on lack of mental capacity.  On the other side of the spectrum, within 2 years after death, a person can claim an informal (common-law) marriage.  If no one comes forward within 2 years, then the decedent is presumed to be unmarried.

Time.  It’s the only thing that death does not stop.

Virginia Hammerle received her JD from SMU in 1982. Find more articles at hammerle.com.  To receive the monthly email newsletters, send your requests to legaltalktexas@hammerle.com