Many Texas residents may not think that they need a will since their largest assets, their home, retirement plan and life insurance policy will all pass to heirs without the need for probate. For instance, spouses usually own homes as joint tenants with rights of survivorship, which means the surviving spouse owns the home outright after the death of the other owner.
Retirement plans and life insurance policies normally include beneficiary designations that identify the person or persons who receive the proceeds after death. Your bank may allow you to designate someone to take possession of the funds through a payable on death designation. These legal devices transfer title of these assets without the need for probate.
But what about everything else?
Any other property such as other real estate, vehicles or other accounts will need to go through probate in order to transfer title to it. Family members cannot just take possession of these items without a court order. This means that a probate will be necessary. State intestacy law decides who receives the remaining assets of the estate.
The basic process
Before any distributions are made, however, the following basic steps require completion:
- An interested party (such as you) initiates the probate process.
- After the court determines that no valid will exists, it appoints you to administer the estate.
- As administrator, you then identify and gather all of the assets subject to probate.
- You will need to identify and notify all heirs.
- You will need to identify and notify all creditors.
- You then pay all of the decedent's taxes, debts and costs of administering the estate.
- You may sell whatever assets of the estate necessary to satisfy the financial obligations of the estate.
You may then distribute any remaining assets in accordance with the state's laws regarding intestate succession.
But it may not be that simple
The above process may sound fairly easy, but it often isn't. It often takes significantly longer to administer an estate without a will. Part of the reason for this involves the necessity of court approval for any actions you want to take. This process takes time -- each time.
In addition, any assets your loved one may have promised to someone may not end up in their hands after death. Not only are you not bound by these oral promises, but any distributions will more than likely be made in accordance with the succession laws instead. Your loved one's other potential heirs may also question your every action. This also causes delays.
Furthermore, mistakes can occur at any point during the process, which would cause more delays. Administering the estate alone could prove frustrating, time consuming and costly. If you find yourself tasked with administering the estate of a loved one who died without a will, you may benefit from seeking out the advice and assistance of a probate attorney.