ANSWERS TO FREQUENT
By: James M. Bright, Attorney at Law
The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
The following is a list of some of the more common questions which I encounter in my law practice regarding probate of a will. The answers provided may vary depending upon the particular client, but are offered as a general guideline for situations which are non-extraordinary.
HOW LONG DOES IT TAKE TO PROBATE A WILL? Under most conditions, a probate hearing will be conducted within 2-4 weeks following an initial interview with your attorney. If witnesses must be located or consents must be obtained, the delay should only be for as long as it takes to circulate the needed documents or to communicate with required witnesses and to schedule testimony. In those cases, when a will is in proper form, is properly attested and is self-proven, as most professionally prepared wills will be, no delay is normally encountered, because the applicant will normally be the only witness. (See the previously published article on this subject at http://www.houstontxprobate.com/horrors_of_probate.html)
WHERE AND WHEN SHOULD A PROBATE BE FILED? Except under special conditions, a will should be filed for probate in the county where the decedent maintained a domicile at the time of his/her death. There is no “magic” time for filing this matter, but it should be done before the expiration of four years.
MUST MY WILL BE FILED OF RECORD BEFORE MY DEATH? No, it is not required to file a will of record prior to the death of a decedent. Wills MAY be filed, however, in the county of your residence if you anticipate still residing in that county at the time of your death. This filing will require payment of a small fee to the clerk of the county where you will reside and may vary from county to county in Texas.
MUST THE WILL BE PROBATED? Although there is no universal answer that will ring true in every case, the general response is if there is property that is held in the name of the deceased which can only be passed though an instrument in writing (such as a deed or title) or accounts that are controlled only by the decedent, a probate will almost certainly be required. Property not requiring title transfer might pass without the formality of a probate proceeding so long as the heirs can agree that probate is not essential. (See Car Titles below.)
MUST I PROBATE TO PASS A CAR TITLE? It is common that people are able to pass title to an automobile without going through a formal probate proceeding. You should check with the State of Texas or the County Clerk of the decedent’s home county to find a form of an affidavit which can be used for that purpose.
DO I NEED A HEALTH CARE POWER OF ATTORNEY IF I HAVE A DURABLE POWER OF ATTORNEY? Yes, these documents serve entirely different purposes and may utilize different agents. A durable power of attorney gives the person that you select the power to make business decisions on your behalf during your lifetime. A power of attorney for health care gives no power for the making of business or property decisions but does authorize another person to assist your physician in the making of health decisions for you if you are unable to make these decisions for yourself. (See the previously published article on this subject at:
DOES A PROBATE PROCEEDING INCLUDING APPOINTMENT OF AN EXECUTOR OR ADMINISTRATOR AUTOMATICALLY PASS TITLE TO PROPERTY? No, title to property does not occur automatically upon admission of a will to probate (exceptions may include muniment of title and small estate affidavits). The executor or administrator by virtue of their office is given the authority to sign deeds or otherwise collect and/or disburse assets, but they must exercise the initiative to perform those tasks.
SHOULD I INCLUDE FUNERAL/BURIAL INSTRUCTIONS IN MY WILL? The fact that your will may not be offered for probate until far after the time of your funeral/burial makes placing instructions in your will an impractical thing to do. You will best be served by leaving instructions for these tasks with the loved one who will be following the instruction or with your proposed funeral director. In either case, the persons who need to know your wishes must be advised in time for them to act.
CAN I AVOID PROBATE IF THE ONLY ASSET IS A HOME AND IT IS BEING SOLD UNDER A TITLE POLICY? In many cases, depending upon the make-up of the descendants (i.e, the complexity of the family structure), a simple affidavit in a form acceptable to the title company may be available. This is not always a good plan, however, because you can never be sure what will or will not be acceptable to any given title company. In addition, if complicating elements such as “blended families” or other factors are present, the attempt may and likely will fail completely.
As always, this article and its monthly companion articles are not intended to replace the services of an attorney. The questions answered can not begin to answer the questions that relate to your particular loved one or estate. An experienced attorney of your choosing should be able to answer questions as they particularly relate to you or your loved one.
James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com