Probating a will accomplishes three basic ends. It transfers legal title to estate assets, such as real estate; it distributes property according to the wishes of the decedent; and it provides a vehicle for creditors to be paid. Where there are no debts, and if you are able to transfer legal title and distribute property without probating the will, there is perhaps no legal necessity that the will be probated. However,
all wills, whether probated or not, must still be filed with the court under Section 252.201 of the Texas Estates Code. Simply take the original will, and a copy of the death certificate to the county clerk and tell the clerk that you are filing the will under section 252.201. The clerk will take the will and provide you with a receipt. If the need for a probate soon becomes apparent, you now know where to find that will!
If you know of someone who is refusing to file a will under section 252.201, you may have them served by a constable and thereby called in front of a judge to explain why they have not filed the will. If they continue to refuse to file the will, the judge may order them to pay you all the costs of the suit, including attorney’s fees, and order the person incarcerated until the will has been filed.
A will which has been filed under Section 252.201 is a public record, and anyone may obtain a copy from the county clerk.
Moreover, there may be alternatives to formal probate available depending upon whether there are outstanding debts owed, and the amount of property involved. For example, there are Family Settlement Agreements which can serve in lieu of probate to address the distribution of assets outside of a formal probate proceeding (but they require universal agreement).
While there are some instances when probate may be unnecessary, please allow an attorney to assess the situation rather than just sitting on an unprobated will. Probating the estate of a loved one often gets harder, not easier, when it is delayed.
If you delay probating a will for too long, you may lose the ability to do so. If you delay and later find that that there’s a need to probate the will, then your delay will make things exponentially more costly. Moreover, if a will is not filed promptly, necessary witnesses may become harder to locate.
If you have any questions regarding this, or any other other legal topic, please contact our office at 936.435.1908 or 281-723-2791.