Texas is known for its unique culture, and this extends all the way to its legal system. The probate process, in particular, is distinct from that of many other states, and it’s important to understand how it works. In this post, we’ll discuss several unique aspects of Texas probate, including how long you have to begin the probate process, rights of survivorship, presence of an original will, and who you need to notify.
- Statute of Limitations
Under Texas law, there is a four-year statute of limitations on probate proceedings. This means that if a will is not filed with the probate court within four years of the decedent’s death, it becomes much more difficult—if not altogether impossible—to validate it, and thus execute the decedent’s final wishes.
Beyond the statute of limitations on filing for probate, there is also a statute of limitations on contesting a will in Texas. If anyone wants to contest a will, they must do so within two years of the will’s admission to probate.
- Rights of Survivorship
Another unique aspect of Texas probate is the concept of “rights of survivorship.” Rights of survivorship dictate that, if two people share ownership of an asset and one of those people dies, the property automatically passes to the surviving owner—no probate required. Texas is one of few community property states, which means that spouses are considered joint owners of all assets acquired during a marriage. However—by default—community property in Texas does not include survivorship rights. In order to ensure that your jointly-owned property passes directly to your surviving spouse, you will need to file a rights of survivorship agreement, revocable transfer on death deed, lady bird deed, or deed transferring ownership of the real property to your trust with the county where you live. An estate planning attorney can assist with deciding which route is best for your situation and make sure all your bases are covered.
- Presence of the Original Will
Texas law requires an original will be presented to the probate court. Photocopies or digital copies are not sufficient. If the original will cannot be found, even if you have a copy of the original will, it becomes much more difficult—if not altogether impossible—to validate it, and thus execute the decedent’s final wishes. This is because the presumption is that without the original the person that passed away revoked it during their lifetime and that is why the original cannot be found. You have to prove to the court that they did not revoke it. Even more difficult is when you cannot even find a copy of the original will. Without a copy of the original will, it may be necessary to prove its contents through other means, such as witnesses who were present when the will was executed.
- Stepchildren Must be Notified
Finally, Texas law requires that stepchildren be notified of probate proceedings if you wait more than four years after someone passes to ask the court to admit the will or if you cannot find the original will. This is because your stepchildren are heirs of your spouse under Texas law. Therefore, your stepchildren will inherit your spouse’s community property if there is no will, and because if you wait too long or cannot find the original they may inherit their portion of the estate, they must be notified of the probate proceedings to protect their rights.
The Texas probate process is distinct from that of many other states, and it’s important to understand its one-of-a-kind nuances. If you’re preparing for probate in Texas, it’s a good idea to consult with an experienced estate planning or probate attorney who can guide you through the process and help you protect your rights and interests. Even if you aren’t preparing for probate in the short-term, working with an estate planning attorney now can ensure a seamless estate administration process in the future.
Contact the Hailey Petty Law Firm to learn more about the Texas probate process, and how we can be of assistance.