The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
“I don’t have to probate my spouse’ Will, we were married.” This is a very common misconception. Many folks fall victim to this and only once they try to sell property do they realize that they need to probate their spouse’s Will. If it has been more than 4 years or if you have destroyed the Will, then you are in for a costly process. As I have before, this week I am going to again attempt to inform you why you MUST seek legal advice from an attorney when your spouse passes away.
Probate or estate administration is the management and settlement of a deceased person’s estate by a personal representative approved by the court. Estate administration does not require a Will. Probate is the formal process of administering a person’s estate when they had a Will or establishing heirship if they did not. The formal process of probate in Texas is normally very simple and quick. However, what can take a great deal of time is the transfer of the decedent’s assets if they have not properly planned ahead. Family dynamics can also complicate or delay matters, particularly if a child predeceases a parent or it is a blended marriage with children from prior relationships.
Probate may not be required when the decedent’s estate is very small, but is required in most circumstances. In fact in a fairly recent case the court ruled a Will not admitted to probate is not effective for the purpose of proving title to real estate. Ratcliff vs. Polk County Title, Inc., No. 09-04-124-CV, 2004 WL 1925447 (Tex. App.-Beaumont. Aug. 31, 2004, pet.denied). In this case, a title company was sued for defamation after the title company issued a title report (i.e., Commitment) that included a statement that Mrs. Ratcliff, a deceased owner of real property, died intestate. Mr. Elijah Ratcliff, Mrs. Ratcliff’s son and named executor in Mrs. Ratcliff’s Will, sued the title company on the grounds that Mrs. Ratcliff did, in fact, have a Will and, therefore, the title report was defamatory. The District Court rejected Mr. Ratcliff’s theory. The Appellate Court affirmed the District Court’s ruling and pointed out that although Mr. Ratcliff had previously filed an application to probate Mrs. Ratcliff’s Will, the Will was never presented for action in the Court. The Appellate Court ruled that until a Will has been admitted to probate, it is not effective for the purpose of proving title to real property; thus, in that context, the title report was not defamatory.
In Texas, there are several different methods of administering an estate; some of the more common are Independent Administration, probating the Will as a Muniment of Title, filing a Small Estate Affidavit, and filing an Informal Family Settlement.
If the decedent owned real property at their death, then something must be done to properly transfer the property. Usually this is not discovered until the family of the decedent decides to use, sell, or partition the property. It could also arise if there is a dispute as to the payment of expenses or taxes on the property. Without a Will, the Texas Estates Code controls the disposition of the estate. This process can be complicated, involve contacting many heirs, and take a great deal of time. If the deceased spouse has children from outside the current marriage, those children also will have rights to the property. In the scenario just mentioned, the children of the deceased spouse end up owning a portion of the property along with the living spouse. However, neither can sell the property without the other’s approval. This is a very common issue and can often lead to conflict.
Please note that there are limitations as to which form of probate may be used depending on the situation, and no Will shall be admitted to probate after the lapse of four years from the date of death. You should not delay seeking the advice of your attorney to decide which method of estate administration is right in your particular circumstances. Having a well-written and current Will, particularly with a blended family, could save you time and money.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com ©