Jun 25, 2021
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.
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.
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.
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:
In short, when you ask yourself, “Should I probate?, look at all of the ramifications of not settling the estate.
Bob Leonard Law Group, PLLC
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