What Happens If You Don’t Probate A Will In Texas?

Posted by: Adair M. Buckner

Probate can be costly and complicated. If your loved one has passed away and left a Will behind, failure to probate the Will may leave you in a worse situation down the line. 

Failing to probate a Will may be understandable because of fear of cost and complications with family, but taking some action to resolve your loved one's estate may be required. There are truly some situations where probate of a Will is not required, which are discussed below.

Here are the most common situations in which a Will may not be probated, why you should probate a Will in the state of Texas, and what your next steps should be.

Situations In Which A Will May Not Be Probated

In the state of Texas, there are several situations you may find yourself in where a deceased loved one's Will may not be probated. In some of these situations, skipping probate is for the best. In others, however, you may experience emotional and financial hardships because the probate process didn't occur. These are the most common situations in which probate may not occur.

Heirs Do Not Realize They Need To Probate The Will

It is a fairly common situation where a surviving spouse believes he or she automatically inherits all of the deceased spouse’s property upon his or her death. This is not true. Many times, the family finds this out only after the surviving spouse passes. At that point, a probate action or preparation of an Affidavit and Family Settlement Agreement ("Affidavit") has to be pursued on behalf of both spouses in order to pass title to the next generation of beneficiaries.

This can pose a special problem because Texas law generally requires a Will to be probated within 4 years of the date of the decedent’s death. If more than 4 years have passed, the applicant for probate must convince the court he or she had good cause for not presenting the Will within that time. Fortunately, most times, the courts are fairly liberal in accepting the excuse that the surviving spouse was misinformed about the need to probate. The mere belief that a spouse did not need to probate a Will may or may not be a sufficient excuse, depending on the court.

There is a danger of waiting too long: I had one case in which family members had repeatedly urged the surviving spouse to probate the Will, which left everything to her, but she refused, saying it was too expensive. So, a surviving a child of a prior marriage of the earlier deceased spouse waited until the 4 years from the parent’s death had passed and requested an administration of the estate.

Texas law provides that, when this happens, the Will is treated as if it did not exist, and the estate passes by intestate (without a Will) succession. This means that children by a prior marriage take the deceased spouse’s one-half of any community property. As a result, the surviving spouse lost the deceased spouse’s one-half interest in property that she would have received had she probated the Will. Her Will could dispose of only her one-half interest to her intended beneficiaries. Stubbornness was counterproductive in this instance.

Possible Family Agreement On Disposition Of Assets

In some instances, it may not be necessary to have a formal probate of a deceased loved one's Will, if all of the heirs agree to the distribution of the estate, there are no creditors demanding payment from the estate, and the value of the estate is not very high.

If this is the case, the heirs may have an Affidavit of Heirship and Family Settlement Agreement (“Affidavit”) drawn up, and attach a copy of the Will. This document should be filed in the official public records of any county where the deceased owned real property. Many times, third parties will honor the Affidavit. If a third party refuses to honor the Affidavit, however, a probate may then be necessary to transfer the assets.

The Person Holding The Will Refuses To Produce The Will Or Take Any Action To Settle The Estate

I have occasionally seen the situation where a surviving spouse or another family member who has custody of the deceased’s Will refuses to produce it, to enter into an Affidavit of Heirship and Family Settlement Agreement, or to take any action to settle the estate.

In that instance, other interested parties, including beneficiaries under the Will and creditors of the estate, can file a motion with the probate court where the deceased lived to force production of the Will. Then, that interested party or any other interested party can proceed to have the Will probated.

All Assets Are Distributable By Payable-On-Death Or Other Beneficiary Designations

Many assets, such as bank accounts, investment accounts, retirement accounts, and life insurance can be set up to pass outside of probate by payable-on-death ("POD") or beneficiary designations. Also, under the law of Texas and a number of other states, even real estate and mineral interests can be passed outside of probate to designated beneficiaries under a Transfer on Death or "Lady Bird" Deed. 


When Probate Of A Will May Be Required

An Affidavit Of Heirship & Family Settlement Agreement Will Not Work

Sometimes, an heir will not agree to sign an Affidavit, or the estate is not appropriate to use the Affidavit. Also, if the estate has a significant value, third parties may be unwilling to risk relying on an Affidavit to transfer assets. A form of probate will be necessary then.

Most title companies and other third parties holding assets of a deceased person will require all potential heirs to join in the Affidavit to honor it. Or, if there are real estate or mineral interests, on which a Transfer on Death or "Lady Bird" Deed has not been done, a probate action probably will be required in these instances.

If a probate action of some sort is the only alternative, it is possible that a less expensive Probate as a Muniment of Title can be used. There must be no outstanding debts of the estate other than liens on real property to use this simpler probate procedure.

Do Not Delay Moving Forward To Determine If Probate Of A Will Is Required

Generally, it is not necessary to probate a Will immediately after a loved one’s death. The best time to move forward with determining if probate is necessary is when the family has had time to process the loss of the loved one and is in a good frame of mind to proceed with settling the estate. This may be a couple of days or months. 

Some situations will require probate more quickly than others. It depends on the assets involved and the needs of the beneficiaries. Remember, the outside limit, unless you have a really good excuse, is 4 years following the decedent’s death.

If your loved one passed away in Texas and you need help determining whether probate is required for a loved one's Will, contact Adair M. Buckner for a free initial consultation*.


*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal, or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.


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