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Answers to Go with Susan Smith

Sunday, February 10, 2019

Q. My dad died last year. He had a will, but no real estate, automobile or investments. Do you have a book on Texas probate law? How much time do I have to probate the will?

A. Let’s start with a simple introduction to probate in “The Senior Texan Legal Guide” by Paul Premack.

Premack writes: “Probate is the process of proving that a Will is valid, and handling any business left untended by the decedent. Generally, probate involves an Executor who must gain control over the estate, pay the debts, pay the taxes, and distribute the remaining assets to the proper heirs.

“The term probate is also used to describe the procedures used when a person dies without having a will. Typically, the probate procedures for an intestate estate (no Will) are more complex than those in which there is a Will. Without the evidence provided in your Will probate may involve the additional complexity of a ‘proceeding to determine heirship.’”

Premack explains that the Texas Probate Code requires most types of probate be started within four years after someone dies.

Probate establishes the identity of heirs so that real estate and other property may be sold and funds in financial accounts be distributed appropriately. It will also determine the identity of heirs if there is no Will.

Premack addresses a key issue: “When does a Will need to be probated, and when can you skip the whole process? The answer depends on what assets and debts exist, and how they are legally titled.

"For instance, if the person who died owned only a checking account and a certificate of deposit that were both held jointly, with rights of survivorship and had no debts, then probate is probably not necessary. The surviving account holder can simply claim ownership using a copy of the death certificate.

“On the other hand, if the person who died was sole owner of a home, was sole owner of a bank account, and a few stock certificates, then probate is probably necessary.”

We have other more detailed resources on probate: “How to Live—and Die--with Texas Probate” edited by Charles A. Saunders and “How to Probate and Settle an Estate in Texas” by Karen Ann Rolcik.

Rolcik’s book includes forms and basic information that will help you choose forms that are most appropriate for your situation.

You may also want to consult the online database “Gale Legal Forms—Texas” which are part of our TexShare resources. If you come in, we can help you get started with that service.

If you prefer, you may contact us for the TexShare web address, login and password information.

Our email address is smpl@sanmarcostx.gov and our telephone number is 512-393-8200.

As with any legal manner, you may feel it is best to discuss your situation with a local attorney.