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

Posted by: Adair M. Buckner

Probate can be costly and complicated. Unfortunately, not probating a Will could cause your family more stress in the long run. 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, but taking some action to resolve your loved one's estate is usually required.

In this blog, we will explore the most common reasons why 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

1. Possible Family Agreement On Disposition Of Assets

It may be that a deceased loved one has a Will but those in charge of his or her estate have not probated the Will. In some instances, it may not be necessary to have a formal probate, 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, which 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.

2. An Affidavit Of Heirship & Family Settlement Agreement Will Not Work

Sometimes, an heir will not agree to sign an Affidavit of Heirship & Family Settlement Agreement, or the estate is not appropriate to use the Affidavit. 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. If one or more heirs refuse, a probate of some sort may be the only alternative. It is possible that a less expensive Probate as a Muniment of Title can be used if there are no outstanding debts of the estate other than liens on real property.

Also, if the estate has a significant value, third parties may be unwilling to risk relying on an Affidavit to transfer assets. Again, a form of probate will be necessary then.

3. 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 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.

4. 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, and probate or the informal Affidavit and Family Settlement Agreement has to be pursued on behalf of both spouses.

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 they 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.

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 child of the deceased by a prior marriage 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 that she would have received had she probated the Will.

The Consequences Of Not Probating A Will In Texas

If there is a Will and it is not probated at all, assets may not be transferred as the deceased intended or transferred at all. One example of this is the case I just discussed above. Intestate succession in Texas may be quite different than how the decedent wanted his or her estate to pass. 

Do Not Delay Moving Forward To Probate A Will

I have had some clients believe that they needed to probate a Will immediately after a loved one’s death. This is not true. As shown by the example above, however, delay past 4 years in probating the Will can be catastrophic.

The best time to move forward with probate 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, months, or years. Some situations will require probate more quickly than others. It depends greatly 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 probating the 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.)


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