When someone dies, probate is the process by which a court oversees the distribution of that person’s assets according to the terms of their will. There are some assets that pass to heirs outside of probate. Many surviving spouses do not realize that probate is necessary to transfer property purchased by the couple prior to one’s passing.
When Do I Have to Probate a Will in Texas?
Texas Estates Code requires the personal representative, or executor of the estate of the decedent to submit the will to the probate court within four years of the death of the decedent. If the representative fails to file the will within the designated time, then the assets will be distributed as though the decedent left no will.
There is a provision in the law for the court to allow a will to be submitted after the fourth anniversary of the death “if the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death.”
Some excusable reasons for not filing the will within the four-year time limit include:
- No one knew of the existence of the will until after the four years had passed.
- An applicant for probate had sought legal advice and been told probate was not needed.
- The representative had a good faith belief that the estate had no assets, but assets were discovered after the four-year time period had elapsed.
- A deed indicating real property had already been conveyed or passed under a right of survivorship.
Property That Passes Outside of Probate
Not all of a decedent’s assets pass through probate. Some examples of those that go directly to the beneficiaries include:
- Life insurance proceeds when the policy names a beneficiary.
- Bank accounts that are owned jointly or that have a named beneficiary.
- A spouse’s community property that is owned with the right of survivorship.
- Real estate when held in joint tenancy or with a transfer on death provision.
- Investment and retirement accounts that have a named beneficiary.
- Vehicles when owned jointly with another person.
- Real estate when the deed is held by joint tenancy.
These assets go directly to the beneficiary without passing through probate or needing the supervision of the probate court.
For assistance in submitting a loved one’s will to probate, or for help in preparing your will or trust, contact our experienced estate planning attorneys at Springer & Lyle. You may also call 940-387-0404.