The Five Biggest Probate Mistakes Families Make After Someone Dies

After a death, families are often faced with two competing pressures. They need time to grieve, but bills continue to arrive, property must be protected, and relatives want to know what happens next. Someone usually steps forward to help. Often that person is a surviving spouse or an adult child who handled the deceased person’s affairs for years.

That willingness to help is valuable. However, it can also create trouble when family members confuse being trusted during someone’s lifetime with having legal authority to act after death. We have seen otherwise straightforward estates become expensive because someone moved too quickly, misunderstood the will, or failed to keep the rest of the family informed.

Here are five mistakes we repeatedly encounter in Texas probate matters, along with suggestions that can help families avoid them.

1. Assuming a Power of Attorney Still Works After Death



Perhaps a daughter has been paying her father's bills for several years under a durable power of attorney. When he dies, she naturally continues doing what she has always done: writing checks, contacting the bank, and dealing with his accounts. She may believe she is simply keeping things in order.

But a power of attorney is authority to act for a living person. As a general rule, the agent's authority ends when that person dies. A bank account does not become the agent's account, and the agent does not automatically become the executor. Texas law has limited protections for certain good-faith acts taken without knowledge of the death, but those are not permission to continue using the power of attorney after learning of it.

The next source of authority may be a court-appointed executor or administrator, a trustee for trust property, or another person entitled to act under the rules governing a particular asset. A surviving joint owner or named beneficiary may have rights of his or her own, but those rights are different from authority under a power of attorney.

Texas Probate Tip: Once you learn of the death, stop using the deceased person's power of attorney. Identify which accounts belong to the estate, which may pass outside probate, and who is legally authorized to act before moving money.

2. Waiting Too Long to Locate the Will or Address Probate



Some families believe probate is unnecessary because everyone agrees about what the will says. Others put it off because there is no immediate need to sell the house. Years can pass before someone learns that the will was never admitted to probate.

Texas generally requires an application to probate a will to be filed within four years after death, although an important exception exists when the applicant was not in default for failing to act sooner. A late application might therefore be possible, but it may require additional evidence and can change the available procedures. Waiting can also make it harder to find witnesses, locate heirs, or establish ownership of property.

One of the most frustrating situations occurs when the surviving spouse remains in the home for years after the first spouse's death. Everyone assumes the spouse owns it. When that spouse dies—or tries to sell or refinance—the title company discovers that the first estate was never addressed. What might have been a relatively routine matter now involves two estates and potentially two groups of heirs.

After someone dies, families should promptly locate the original will, obtain death certificates, identify the assets and debts, and find out whether a probate proceeding is needed. Not every estate requires the same procedure. Depending on the circumstances, Texas law may allow probate of a will as a muniment of title, a small-estate affidavit in qualifying intestate estates, or another appropriate approach.  Don’t assume anything; ask a probate attorney.

A Common Misconception: “We can probate the will whenever we get around to it.” Delay does not always prevent probate, but it may, and it also can make an otherwise manageable problem significantly harder.

3. Taking or Distributing Property Before Ownership and Authority Are Clear



After a funeral, relatives sometimes begin dividing jewelry, tools, furniture, vehicles, or family keepsakes. They may sincerely believe they are following the deceased person's wishes. One person may even say, “Mom promised me that.”

Unfortunately, a promise remembered by one child is not typically a legally effective transfer. Property may belong to the estate, be subject to debts, pass under a will, or already belong to someone else by survivorship or beneficiary designation. And a person named as executor in a will does not automatically have all the powers of a court-appointed executor until he or she is appointed by the court and qualified.

Distributing property too early can lead to accusations of favoritism or theft, create problems when creditors must be paid, and make it difficult to reconstruct what happened. The situation becomes particularly sensitive in blended families, where different relatives may have very different expectations.

We have seen disputes begin with something as small as a piece of jewelry or a collection of tools. The financial value may be modest, but the emotional significance is not. Once family members believe property has been taken secretly, mistrust can spread to the entire estate.

Our Advice: Secure property, photograph and inventory valuable items, and avoid permanent distributions until the proper representative has been identified and qualified and understands the proper ownership, obligations, and the terms of the will or applicable inheritance law.

4. Failing to Keep Records and Account for Estate Property

An executor or administrator may be dealing with dozens of transactions: insurance proceeds, mortgage payments, repairs, taxes, utility bills, sales of property, reimbursements, and distributions to beneficiaries. When those transactions are not documented, even an honest representative can have difficulty explaining what happened.

We have handled disputes in which the central question was not whether money had been spent, but where it went. A representative may have used personal funds to pay estate expenses, then reimbursed himself without keeping receipts. A family member may have removed household items for safekeeping but never made a list. Months later, the explanations no longer satisfy the other beneficiaries.

Texas law imposes duties on personal representatives, and the specific accounting and reporting requirements depend on whether the administration is independent or dependent and on the relief requested. Independent administration generally allows greater freedom from routine court supervision, but it is not freedom from fiduciary duties, transparency, or from having to account when the law requires it.

Separate estate funds from personal funds. Keep bank statements, receipts, invoices, sale documents, and a running list of property received and disbursed. If a family member advances money, document whether it is a loan, reimbursable expense, or gift.

Texas Probate Tip: A simple ledger maintained from the first day of administration is far easier to prepare than an accounting reconstructed two years later during a lawsuit.

5. Keeping Beneficiaries in the Dark



Many probate disputes start with silence. An executor may be working diligently but provide little information. Beneficiaries, hearing nothing, begin to worry. One suspects assets have been sold. Another wonders why the house remains vacant. Eventually someone hires a lawyer to demand answers.

Not every beneficiary is entitled to participate in every decision, and the law does not require an executor to obtain family consensus before exercising properly granted authority. But a representative's legal discretion does not make communication unimportant. In fact, clear communication can prevent suspicions from becoming litigation.  An executor or administrator has a duty to be transparent.

We have seen estates in which family members might have accepted delays, expenses, or even an unfavorable result if someone had simply explained what was happening. Instead, the absence of information led them to assume the worst. By the time records were produced, the relationship had deteriorated.

A practical approach is to explain the general steps of the administration, give reasonable updates, respond to legitimate questions, and preserve written records of important decisions. There may be good reasons not to disclose certain information prematurely, but those reasons should be considered deliberately rather than using silence as the default.

Why This Matters: Transparency will not eliminate every disagreement. It can, however, make it much harder for an ordinary delay or misunderstanding to turn into an accusation of misconduct.

The First Steps Matter



The first few weeks after a death are not the time to make irreversible decisions based on assumptions. Find the documents. Protect the property. Identify the right person to act. Learn which assets belong to the estate and which may pass directly to others. Keep records from the beginning, and communicate with the people who have a legitimate interest in the administration.

These steps may not eliminate every complication. They can, however, prevent many of the problems that consume time, money, and family relationships in contested probate cases.

For problems that can be avoided before a death occurs, see our companion article, “The Five Biggest Probate Mistakes to Avoid Before Death.”

Questions to Ask Before Taking Action

• Have we located the original will and identified the appropriate probate procedure?
  
  
• Who currently has legal authority to deal with each asset?
  
  
• Have we secured and documented estate property before moving or distributing it?
  
  
• Are estate expenses, reimbursements, and distributions being recorded?
  
  
• Are interested family members receiving appropriate information about the administration?

This article provides general information about Texas probate law, not legal advice for a particular estate. The correct procedure depends on the will, property ownership, family relationships, debts, and other circumstances

This is for informational purposes only. Please know that your case is unique and you may need to hire an attorney for information specific to your situation.