Five Myths About Texas Wills and Probate

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Five Myths About Texas Wills and Probate

Five Myths About Texas Wills and Probate most people don’t know a lot about. The law of wills, trusts, or probate–after all, they’re topics none of us really want to deal with. But we should all know the basics. And we should know enough to recognize common myths when we run across them. Here are a few misconceptions that keep coming around.


  1. If someone dies without a will, the state gets everything.

There are lots of reasons to write a will. Worrying about the state snatching your family’s inheritance is not one of them. If you die without a valid will (the legal term for this is dying “intestate”), then state law kicks in. Every state has its own rules for who inherits what.

Generally, your spouse and children are first in line to inherit. The rules vary from state to state, however.

So do assets ever go to the state? Yes, only when no relatives can be found. As long as your personal representative can turn up your uncle’s lost grandchild, the state won’t get your money. The term for this is called “escheat”.

Tip: Write your will! Even if the state won’t get your money, you still want to decide who does—so don’t leave that decision up to state law. Making a will is easy, and it doesn’t cost a lot. Five Myths About Texas Wills and Probate.

  1. It takes years to probate an estate. 

Most estates don’t take years and years to resolve. Usually, the only delay is the period, mandated by state law, that gives creditors time to file claims. It usually starts when a notice of the probate proceeding is published in the local paper. And runs from three or four months on the short end to a year on the long end.

After that waiting period is over, the estate can be closed as soon as the personal representative has gathered all the assets, paid debts and taxes. As a practical matter, it usually takes a few more months to get everything in order. But most estates are finished within a year.

What makes some probate cases drag on for years, then? There are three main causes:

Family fights. If a family member challenges the will, or if siblings can’t agree about how to divide a parent’s assets.

A very large estate. The estate is so big that it owes federal or state estate tax, things are more complicated.

Tip: Probate doesn’t usually drag on for years, but it does drag on. Check into easy ways to avoid probate in Texas, and you’ll save your family some headaches. Five Myths About Texas Wills and Probate.


Five Myths About Texas Wills and Probate

  1. The cost of probate will eat up all the estate assets. 

There are a lot of scary stories out there about how much probate costs. If you believe the worst of them, you might think that your family won’t get a thing once the lawyer fees and court costs are paid. Fortunately, that’s just not true.

First of all, many estates don’t even require probate proceedings. Generally, only assets owned in the deceased person’s name along must go through probate. And if the value of those “probate assets” is small enough, the family can take advantage of probate shortcuts, which are less expensive than regular probate.

There are, however, two important exceptions. In these situations, probate costs could rise dramatically:

High attorney-fee states. In a few states, most lawyers charge a percentage of the value of the estate as their fee, instead of charging a flat fee or hourly rate.

Litigation over the estate. If someone contests the will or accuses the executor of misconduct, costs can soar.

Tip:  If you live in a state where attorneys can charge extra-high fees,.Make sure your executor knows that those fees aren’t mandatory. The executor should find a lawyer who will charge a reasonable flat fee or hourly rate. Five Myths About Texas Wills and Probate.

  1. I don’t have to leave anything to my spouse. 

Some couples decide not to leave each other a significant amount of assets. Especially if each one owns some assets independently, they may agree that each will leave most assets to his or her children from a previous marriage, or to a charity. Many couples in second marriages, especially if they married later in life, are primarily concerned with providing for children from a previous relationship.

This can work just fine, as long as when the first spouse dies, the survivor is still happy with that arrangement. But if circumstances have changed, or the survivor simply changes his or her mind, trouble can arise. That’s because state law gives surviving spouses the right to refuse to take the assets left in the deceased spouse’s will, and instead choose to take what most states call the “elective share” of the estate. This is often called “taking against the will.”

State law may give the survivor one-third of the estate, or a year’s support, or the right to live in the family home—it varies widely from state to state.

Tip: If you and your spouse don’t want to leave property to each other in your wills, go to a lawyer and discuss your plans. You’ll want to sign waivers, giving up your right to take against the will. Five Myths About Texas Wills and Probate.

  1. As the oldest child, I am entitled to be the executor of my parent’s estate. 

Just because you were always the responsible one. Or just bigger and able to push your little siblings around. Doesn’t carry any weight when it comes to serving as the executor (personal representative) of a deceased parent’s estate.

If the deceased person named an executor in his or her will, the court will appoint that person unless there’s a very good reason not to. (Reasons include a felony conviction or a disability that makes it impossible to do the job.) But sibling order isn’t a factor courts take into account. Instead, the court looks to state law, which sets out a priority list for who the court should appoint.

If more than one child wants to be executor, they can agree to act as co-executors, but that’s often a situation that can lead to family friction. It’s often better if siblings agree that one of them will serve as personal representative, and will keep the others well informed about the probate court proceeding.

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