When to Probate
We get several calls a week asking the question, “Should I probate?” Probate is a term used by most people for anything that happens to settle an estate after a person dies. Technically, “probate” applies only when there is a will and that will is presented to the court for probate. However, for purposes of this message, we will use the word “probate” as a loose term to mean “settle an estate.”
So, even if there is no will and you don’t need to probate, please don’t think you do not need to settle the estate of your loved one. In fact, there are many reasons to do so.
The single most important reason is to ensure that your property rights and those of your heirs or beneficiaries are protected. Following you will find two situations we face commonly in our probate practice. If you are thinking, should I probate my wife’s estate, read on.
My Spouse Died and I want to refinance the house. Should I Probate?
Mary and Joe were married for 50 years; they had no children. About a year after Mary died, Joe decided to do some major work on the house and applied for a home equity loan. The lender told Joe he does not own the house. What’s up with that? They bought the house together and Mary is gone, so why doesn’t Joe own the house?
Everything they owned, they bought during the marriage, so when Mary passed, everything was now Joe’s, right? Since Mary did not leave a Will, there is nothing to probate. Since they had no children, together or separately, everything does, in fact, go to Joe according to Texas’ Intestate Succession law. But without the proper paperwork, Mary’s estate still owns her share of the house.
If your spouse has passed and there are no children, hire a qualified probate attorney who can prepare an Affidavit of Heirship. This document shows that you are the heir to the property. It can be filed in the Deed Records division of the county where the property is located. The only caveat here is that the lender may not accept this document. Be sure to ask the lender before you undertake the process.
What if the lender won’t accept an Affidavit of Heirship? If the lender will not accept an Affidavit of Heirship, and many will not, then hire a qualified probate attorney to prepare and file an Heirship in the probate court. Some lenders will want an Heirship with Administration, so, again, be sure to check with the lender before you start the process.
My Mom Died and My Dad left me the house. Should I probate?
Let’s say that Mary and Joe were married for 50 years; they had two children together. About 5 years after Mary died, Joe died. Joe had a will leaving the property to his two children. The children hire an attorney to probate the will and the attorney asks them if Joe probated Mary’s estate. “She didn’t leave a will, but Dad got everything,” they tell the attorney.
That isn’t exactly accurate. Again, because Mary and Joe were married and had both children together, everything went to Joe. But without the proper paperwork, Mary’s estate still owns her share of the house and even though Joe left it to his children in his will, his will can only dispose of property that belongs to him. He can’t leave them the portion that still belongs to Mary’s estate.
In order to inherit the house, the children will have to handle Mary’s estate in addition to probating Joe’s will.
These two situations have relatively simple solutions. In the first situation, we can do the simplest thing the lender will allow in order to handle Mary’s estate so that Joe can refinance the house. In the second situation, we can do an Affidavit of Heirship or other heirship proceedingshowing that Mary’s property went to Joe as her heir. Then through the probate of Joe’s will we can honor his bequests to his children as his beneficiaries.
What if I Don’t Probate?
Please be aware, when you ask the question, “should I probate,” that your situation can become far more problematic if there are other issues, including:
- Spouse has children from prior marriage or relationship. In this instance, if Mary had children who were not Joe’s children, her share of the community property would go to her children. Joe would now own the property with them.
- More than 4 years when there is a will. It is past the time when you can probate the will; the property will now pass according to Texas laws of intestacy. In either of the above main scenarios, that would not be a problem for Joe. But if Mary had children who were not also Joe’s children, her share of the community property home would belong to her children.
- Heirs of the deceased have died. If you do an heirship, particularly after a long period of time, it is possible that heirs are no longer living but have children or grandchildfren. In addition to making the process more cumbersome, it can also contribute to disputes as more people become involved.
- Heirs of the have disappeared. If you are doing an heirship proceeding, you will have to locate all the heirs. If you cannot find the heirs and if the court appointed ad litem attorney cannot find the heirs, the portion of the estate that would go to the heirs may have to be held in trust. Missing heirs present challenges to the administration of the estate.
- More than one generation has passed without a probate proceeding or heirship proceeding. You would think this would rarely happen. That somewhere along the line, the question, “should I probate,” was answered with a yes. Not so. Particularly with real estate and mineral interests, generations go along without a formal probate. It is simple to get the tax collector to change the address and name of the person paying taxes, and simple to tell the oil and gas company that you are the heir. You don’t need an actual deed to do these thing, so sometimes it gets overlooked. Of course if they find oil on the land, there will be a scramble to get everything done properly.
In short, when you ask yourself, “Should I probate?, look at all of the ramifications of not settling the estate.
If you need probate advice or assistance, contact us now.