Learn From Our Experience: A will isn’t all you need … what you need to know about probate

Probate is the legal process of inheritance.

It’s also a word that strikes fear in people – coming on the heels of someone’s death, it can take time, money and be emotionally challenging.

Here’s what you need to know – from two of our experts – on how to possibly avoid probate and what to do if you can’t.

The assumption for this version of Learn From Our Experience, is the person who has passed away had a will. If you don’t have a will, please read this story and get one.

“It’s amazing how many survivors think that just having the will in their hand is all that is required, as if that document has some magical quality,” said John Shanklin, McCleskey attorney.

John Shanklin

“Some people think that nothing further is needed.  Then, they go try to sell real estate in ten years … oops,” he recounted.

In sum, having a will does not mean court can be bypassed. The will still has to be admitted to probate by a judge.

Most of the time, probate of a will is not a scary process in Texas, said Shanklin.

“Movies and TV have made it seem like every probate is daunting, but — in reality — even a full-blown probate should not be a huge stressor.  Some professionals continue the myth probate should be avoided.  But, in Texas, that just isn’t the case. Be wary of a financial advisor, accountant, or even an attorney who says probate should be avoided at all costs,” he said.

That said, it’s quite often the case a full-blown probate is overkill. Thus, survivors should consult an attorney to decide if alternatives exist.

Jerry Kolander, McCleskey attorney and managing partner, said the first thing they do is meet with the family, see what estate planning documents they have, get a description of property and learn about family dynamics.

“The first time you meet them, they may not tell you that everybody hates everybody else. You find that out later. Sometimes they haven’t communicated with a family member in 25 years and are not sure where he or she is,” said Kolander.

But if the process is simple – let’s say a widow passes away and wills the family house to her only adult child – probate might be avoided with an Affidavit of Heirship, which can be used to clear title to real property.

“The Affidavit of Heirship mirrors what’s in the will and many times we’ll attach it to the will,” said Kolander.

Jerry Kolander

Using this route can save money compared to a full-blown probate if the estate is simple enough.

Another route is the admission of a will to probate only as a “muniment of title” (Texas only). This process can also avoid a lengthy probate process.

Let’s say the person who died wanted to bypass an only child and give his or her inheritance to a grandchild or friend. A muniment of title process could be better than a full-blown probate.

But if:

  • There is a family feud over the will.
  • Creditors.
  • Specific gifts to be disbursed.
  • Taxes to be paid.
  • Property in other states.
  • Other complications.

At that point, probate is probably unavoidable.

Sometimes McCleskey attorneys have seen people come in to address an estate before their loved one has even been laid to rest.

“You’ve got four years to go through the process,” said Kolander.

Regardless of circumstances, meeting with an attorney allows you to know what your options are.

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