PROBATE AND ESTATE LAW FAQS

What happens when you die without a will depends a great deal on your family situation. If you're married and have children with your current spouse; all of your property will go to your surviving spouse. If you have children from a previous relationship, then your property will be divided among your surviving spouse and your children. If you're unmarried and have no children, your parents will receive your entire estate if they are both living; otherwise, it would be divided among siblings, a living parent, descendants of siblings (nieces and nephews), or more distant relatives. In each of these situations, your property may be distributed in different percentages depending on whether it is your separate property or community property acquired during the marriage.

Creating a will ensures your property is divided as you wish and that the state has limited say in how your estate is handled after you die. In order to execute a valid will the law requires that the testator be at least 18 years old and of sound mind. Two witnesses over the age of 14 are required for a written will. In Texas, a holographic will with no witnesses can be probated as long as the entire will and signature are in the testator’s own handwriting. Laws vary from state to state and while some states will accept a will created in another state it is important when you move to another state to review your will with an attorney to ensure it is enforceable.

Probate is the legal process that takes place after someone dies. It includes proving a will is valid, inventorying and appraising the property, paying debts and taxes, and distributing the property. In most cases, the process includes court appearance and paperwork filed by the estate’s executor and/or attorneys representing the estate. The process typically takes a few months to a year. Assets that are subject to probate include:

• Bank and brokerage accounts that do not name a death beneficiary or multiple owners with right of survivorship

• Real estate owned individually or as tenants in common

• All vehicles

• Personal possessions such as jewelry, art, and collectibles

Probate laws vary from state to state. In Texas, the executor or a person interested in the estate has four years from the date of the testator’s death to file for probate. If no application to probate the will is filed within that period of time and there is no legally acceptable explanation for the delay, the estate’s assets may be distributed under the laws of intestacy as if the will never existed. Once the executor files for probate, he or she must wait approximately two weeks before the hearing so the court can provide notice to the public that a will was filed for probate.

When a loved one dies, the executor named in the will is responsible for ensuring the deceased’s wishes are honored. They must file an Application for Probate of Will and Issuance of Letters Testamentary and pay the associated fees. The probate court then posts a notification to the public and sets a hearing to allow for any challenges to be filed. After the will is established as valid the court issues Letters Testamentary giving the executor the power to take legal possession of the deceased’s assets and distribute them as dictated by the will.