07 Sep 8 Myths About Wills After the Testator Dies
Many do not know about probate. There is much confusion as the process varies from state to state. The following explains 8 myths about probate.
Myth No. 1: If you have a will, the court must always approve the will through probate.
Wills do not always have to be probated for the following reasons:
a) Some assets or accounts are held as joint with right of survivorship whereby the surviving owner is entitled to the asset/account;
b) Signature cards at banks that indicate “paid on death” (POD) or “in trust for” (ITF) or at investment firms that indicate “transfer on death” (TOD) supersede a will;
c) Other beneficiary designations such as on a life insurance policy, retirement account or annuity also supersede a will;
d) Assets titled in the name of a trust pass in accordance with the trust;
e) Sometimes title companies will allow transfer of real estate to an heir if there is no will or if the beneficiary of the will would have also been the heir under the laws of intestacy assuming there are no debts other then those secured by real estate; and
f) Some deeds transfer title to the property upon the owner’s death such as a transfer on death deed or a deed with reservation of life estate
Myth No. 2: If I am married and all assets either have survivorship provisions or beneficiary designations, other than the homestead, I never have to probate my spouse’s will.
Although this is sometimes true, it is not always the case. The most common mistake that a surviving spouse makes is the assumption that they own the entire homestead – even if the deceased spouse had children from a prior relationship. Even if the homestead was purchased with community property funds and even if the will indicates the homestead is bequeathed to the surviving spouse, the will must be probated for the surviving spouse to be entitled to full ownership of the property. Otherwise, the deceased spouse’s children would own a portion of the homestead.
Myth No. 3: The only reason for probate is to transfer title of assets of the deceased.
Prior to distributing assets in accordance with the will, the executor or administrator is responsible for paying the debts of the estate (otherwise the executor can be held personally liable). There are classes of claimants under Texas law to determine which creditors should be paid first if assets are insufficient.
Myth No. 4: The Executor of the will can sell property and transfer assets without probate.
Even though someone is named as an executor in a will, the executor cannot act on behalf of the estate until the will is admitted to probate and the court determines the executor is qualified to serve. For example, an executor is not qualified to serve if they have committed a felony or a crime of moral turpitude or if they have been adjudicated as incompetent or if they cannot physically serve as executor or if they are not a U.S. citizen. Furthermore, the will must specifically grant the executor the power to sell the property without court approval.
Myth No. 5: Probate applications must be filed immediately.
Under Texas law, an application for probate of a will should be made within 4 years of the date of death of the testator. In some cases (if there is a valid excuse), the will could be probated even after 4 years (although only as a muniment of title). However, the longer an interested party waits to apply, the longer it takes to settle the estate.
Myth No. 6: Probate hearings are always in person at the courthouse.
This was the case prior to the pandemic. At the time of this article, some courts require hearings to be in person at the courthouse, some courts require the hearings to be by Zoom, some courts allow a hearing by phone call and some courts give you an option. Although it is anticipated that court hearings will eventually be back in person once the pandemic is over due to existing time delays, the world may have forever changed with this pandemic.
Myth No. 7: An executor cannot be a beneficiary.
It is very common for an executor to also be a beneficiary.
Myth No. 8: An executor doesn’t have to give a beneficiary a copy of the will.
Pursuant to Texas law, if a beneficiary is to receive at least $2,000 of assets under the will, the beneficiary must be given a copy of the will. A beneficiary can waive notice.
If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.