Is Probate Always Necessary?

Probate is not necessary for many items of personal property. For example:

  1. There are many assets such as life insurance proceeds, IRAs, pension plans and retirement accounts that pass outside the will to beneficiaries named by the decedent.
  2. Additionally, property held by the decedent and others as joint tenants with rights of survivorship, such as bank accounts and certificates of deposit, pass outside the will directly to the survivor.
  3. Finally, property held in trust will pass under the terms of the trust rather than the terms of a the decedent’s will.

However, when ownership of the decedent’s property is evidenced by title, that property cannot be sold or transferred until the decedent’s name is removed from the title. Probate records become a link in the chain of title, demonstrating that the decedent’s property has passed to someone else.

Comments

  1. My father has not made a will. He has two children: my sister and I. We have a cousin who will try to get as much as he can from the estate, such as physical property, in the event our father dies. Would our cousin have any right to claim any of the estate?

  2. Christy Blackburn says:

    My dad just passed away Wednesday. He didn’t have a will. He was married and I’m an only child. I also have a durable power of attorney on my dad. Does everything go to my mom?

  3. M A Lewis says:

    As a general interest question, is a listing and the value of all assets a requirement for a valid will in the state of Texas?
    (This topic has been debated recently among a group of friends).

    • There is no requirement that one list each item of property or the value of each item in a Will. Often, Wills distribute property by virtue of a residuary clause that simple specifies how all property not specifically disposed of should be distributed.

  4. My father passed away and in his will it states his home should be sold and money split among his children. Since we all agree to this do we have to probate his will before selling?

    • Probate is the process in which the judge declares that a Will is valid and makes the Will part of the public record to give notice to the rest of the world that the testator has died and the property has been transferred according to the terms of the Will. Probate becomes the link in the chain of title to show that the property has passed to someone else.

  5. Q: Now, both parents are deceased-Dec 2014 and July 2018. Will was not probated from 2014 placing real property to surviving spouse. I understand legal counsel is best option- what course of actions are possible since both deceased.

  6. My mother passed away recently and has a will that states all assets are split between my brother and I. Our dad passed several years ago. My question is we are going to sell her house and car, since these are in her name do we have to probate or is the death certificate and will enough!

  7. My father’s will was completed and signed in New Mexico. He now lives in an Assisted Living Facility in Texas and suffers from dementia. Is his will valid in Texas?

  8. I have just one adult child (no spouse) and he alone will inherit my whole estate (no debt — just a Texas house, car, and some investment money). Should I still leave a will? Maybe holographic? I want to make the probate process easy for my son, but doing the whole notary/witness thing will be difficult for a sick old guy like me. I purchased NOLO’s program just to see what a will should cover; the results are pretty sparse with my simple situation. Given that I can’t imagine anyone contesting my son’s claim, what general path would be easiest on both parties? I’m wondering if no will at all might actually be better than a less-than legal document.

    • A will ensures that your property will pass according to your wishes. It is possible to execute an attested Will in your own home by engaging a mobile notary and inviting friends or neighbors to serve as witnesses.

Trackbacks

  1. […] This post was mentioned on Twitter by Rania Combs, Russell Oxford. Russell Oxford said: RT @raniacombs: My new post: Is Probate Always Necessary? https://bit.ly/9UypRh […]

  2. […] has jurisdiction over the estate after receiving notice of the death of the testator. This section does not require the Will to be probated; rather, it’s concern is preventing someone with custody of a Will from suppressing […]

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