Do I Have to Go to Probate Court?
By Tiffany S. Wright, Davidge & Wright, L.P., Denton LIVING WELL Magazine
When an individual dies “testate” it means he or she has left a valid will which, if admitted to probate by the probate judge, will define the distributions from that individual’s probate estate. Oftentimes, those distributions mirror what would occur if the individual were to have died “intestate” or without a valid will. While the probate process in Texas is generally simple, straightforward and fairly inexpensive when dealing with uncontested wills, sometimes there is no need to probate a will. Similarly, it often is unnecessary to go to probate court to open an administration for an estate in the case of intestacy.
A surviving spouse, or adult siblings whose surviving parent has died in many cases may transfer title to the estate assets without using the formal probate process. The following factors come into play when determining whether alternate methods of estate distribution will suffice: (i) how assets are titled (i.e. whose name is on the account); (ii) whether the assets were community property or separate property; (iii) whether the heirs and the named beneficiaries in the will (if any) are the same; and (iv) the flexibility of third party institutions holding the assets.
More often than not, individuals with assets such as bank accounts or retirement accounts have named a “payable on death (POD)” beneficiary, or hold checking or savings accounts with another as “joint tenants with the right of survivorship.” If these items are the only assets of the deceased person, then there is not a need to probate his or her will because those assets would not pass under the will anyway—they are non-probate assets. The named beneficiaries need only present a death certificate to the bank or other institution and the funds be transferred accordingly. On the other hand, if there is no named beneficiary or if the “estate” of the deceased is named, then in most instances the institution will require some type of court proceeding—a probate, determination of heirship or small estate affidavit—before releasing the funds.
Additionally, title to real estate is often transferred using an “affidavit of heirship” filed in the real property records of the county where the property is located, and title companies routinely issue title policies based on these documents when the listed heirs sign off on the transfer at the sale. The affidavit describes the decedent’s family and marital history, indicates whether or not he or she died with a valid will and usually attaches a copy of the will to the affidavit. It is signed by two disinterested people who attest to the validity of the facts in the document. We have, on occasion, had luck with using an affidavit of heirship filed in the real property records to obtain distribution of personal property accounts where no POD beneficiary was named, but we obtained the consent of the third party financial institution prior to proceeding and let the client know upfront that approach may or may not work.
If you are responsible for handling the estate of a deceased loved one, it definitely is worth your time and effort to take stock of the person’s assets and visit with an attorney who regularly practices estate planning and probate law to determine whether you really need to probate the will or open an administration. We have heard of unfortunate cases where people have been told probate was necessary, and some who were charged exorbitant legal fees for the process, when in actuality the transfers could have been made using other methods. An experienced estate planning and probate attorney can let you know whether one of these alternate options for estate distribution makes sense in your situation.
If the will does not follow the same distribution as the laws of intestate succession (how the state says property should be distributed without a valid will), then the affidavit of heirship transfer method will not work, and probate is necessary. But when one parent dies and the survivor is also the parent of the children of the deceased, or when adult children survive their last parent, it is always a good idea not to rush into any one plan of action without thoroughly examining all available options and their costs in both time and expenses.
Davidge & Wright, L.P. handle all aspects of estate distribution, and would be happy to assist you in determining what type of transfer procedures make the most sense for your particular situation. You can reach Davidge & Wright at 940-382-9500 or visit their website at www.davidgewright.com.
