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Is it really necessary to file my parent’s will?

On Behalf of | Jan 19, 2018 | Probate & Estate Administration |

Perhaps your parent created a will some time ago, and you agreed to serve as its executor. Now that your parent passed away, you just aren’t up for the job. Do you have to serve anyway? Do you even have to file the will with the court?

To answer the first question, you don’t have to serve. The court may appoint someone else to take on the task if the will fails to appoint an alternate. As for the second question, in most cases, the law requires the will to be filed with the court. Failing to do so could have repercussions and make fulfilling your parent’s wishes more difficult.

You could be subject to a lawsuit

Until the court removes you as executor, you remain liable for filing the will within the time specified by Texas law. If someone believes he or she suffered financial harm because you failed to file it, you could end up a defendant in a lawsuit. Instead, you could file the will and ask the court to release you from your obligations as executor at the same time.

You may not be able to transfer property

If your parent had a home, vehicles and other valuable assets that require legal transfer, you need to file the will. For instance, if your parent left you the house, and you weren’t already on the deed, you would need to go through the probate process in order to receive legal title to the home. This applies to many assets your parent may have owned at the time of death.

Exceptions to this would be any assets that would pass through operation of law. For example, a retirement account usually requires a beneficiary designation form that identifies the person or persons who would receive the remaining proceeds of the account after death. Probate would not be required in order for those funds to be distributed.

You could have a creditor come calling

When you file a will, the clock begins ticking for creditors to make a claim against the estate for any outstanding balance owed by your parent. Otherwise, the creditor could have a year to make such a claim. In addition, the executor may be able to refuse to pay a claim that a creditor files after the deadline passes.

Fortunately, you and other surviving family members are not responsible for debts in your parent’s name alone. If the estate does not have enough assets to cover debts, you may be able to just file the will and let the time run without going through a formal probate. You may be able to settle your parent’s estate without spending much time in court.

You may not need to open a probate

As intimated above, you may not have to open a probate. You still need to file the will, but it may not be necessary to obtain the court’s approval to deal with the estate. In order to better understand your obligations and to determine how to best handle your parent’s estate, it may be of benefit to consult with a Texas probate attorney.