Alston And Engelhaupt Blog

Does property transfer without having to probate when it is left as an inheritance

John Steadman - Tuesday, February 11, 2014

A: When someone dies their estate becomes subject to the preexisting laws of the state of Texas. According to the Probate Code of the State of Texas no property can be transferred out of a deceased person’s estate without following proper procedure and going through the probate court of most adequate jurisdiction.

If a person dies with a will, that document is to be immediately filed with a probate court. This is done first and foremost to validate the will, and then to address any concerns that might arise from that validation. While the will is often the most widely known document it is seldom filed without the death certificate and also a document called a “letter of testamentary”.

A letter of testamentary is an official document that is commonly drafted in tandem with the will. Using this letter the deceased names a party to be what’s called an “executor” of the estate. Usually this person is a family member, but the executor could also be a friend of the deceased. If the deceased did not leave such a letter of testamentary, or name an executor otherwise in their will, than the probate court will appoint an administrator or leave it up to the family to agree on an executor.

The job of either the administrator or the executor is to hold the real property and personal property of the deceased, in trust, until the will can be validated in probate court and the property can be administrated to the parties according to the document.

At this time all surviving members of the family and all other interested parties are given an opportunity to argue about any provisions in the will or even the validity of the will itself in probate court. Parties are encouraged to file their claims using a licensed lawyer familiar with the proceedings.

Should the will be validated and no party come forward to dispute your interest in the estate, the executor (or administrator) will be free to transfer personal property and real property alike, after the estate’s debts (if any) are paid. The road to administrating a probate case can be difficult and take time. Please consult with a licensed and experienced probate attorney to best take care of your interests.

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