by Kristen Ishihara and Chris Parker with Ishihara & Parker Law Firm PLLC

Probate. It’s one of those words that gets tossed around a lot when discussing estate planning, yet many people don’t fully understand what it means—or why it’s necessary. If you have a will, does that mean you can skip probate? Not quite. Let’s break it down and clear up some common misconceptions.

Probate 101: The Basics

Probate is the legal process of validating a will and ensuring that a deceased person’s assets are distributed according to their wishes. If you have a will, it does not automatically avoid probate. In fact, if you plan to transfer assets through a will, probate is a necessary step to make it official.

Why Do Wills Have to Be Probated?

A will isn’t legally enforceable until a court validates it. That means the original, signed will must be presented to the court, usually with the help of an attorney, and go through the probate process. This process confirms that the will is legitimate, appoints an executor (the person responsible for carrying out the will’s instructions), and grants that executor legal authority to manage the deceased’s affairs.

The Probate Process: Step by Step

If you are named as an executor in a will, here’s what you can expect:

1. Hire an Attorney – Probate laws vary by state, and Texas, like other states, has specific rules to follow. An attorney will guide you through the process.
2. File an Application – You’ll need to file an application in the county where the deceased lived, along with the original will.
3. Attend a Court Hearing – The judge will review the will, confirm its validity, and formally appoint you as the executor.
4. Receive Letters Testamentary – These legal documents grant you authority to handle the estate, including accessing bank accounts and selling property.
5. Manage Estate Affairs – Pay off debts, distribute assets, and handle any other necessary legal matters.
6. Close the Estate – Once everything is settled, you’ll file final paperwork with the court to close the estate.

Common Questions About Probate

Can probate be avoided?Yes, but only if proper planning is in place. Strategies like setting up a living trust, naming beneficiaries on accounts, and joint ownership of assets can sometimes allow assets to bypass probate. However, in many cases, probate is necessary.

What happens if a will isn’t probated?If a will is not probated within four years of the person’s passing, it may no longer be valid. This can create legal complications and lead to assets being distributed according to state intestacy laws, rather than the deceased’s wishes.

Does probate take a long time?In Texas, probate can often be completed in under 30 days, particularly in East Texas where courts tend to move quickly. However, more complex estates may take longer.

How to Prepare Your Executor

If you want to make things easier for your executor, here are some steps to take:

• Communicate Clearly – Let your executor know where your important documents are kept.
• Keep a List of Assets – Maintain a folder with account statements, insurance policies, and property deeds.
• Consider Consolidating Accounts – Having too many scattered accounts can create headaches for your executor.
• Prepare a Death Guide – A simple list of bank accounts, insurance policies, and investment details can be a huge help.

Final Thoughts

Probate isn’t something to fear, but it’s important to be prepared. If your estate plan includes a will, expect that it will need to be probated. Planning ahead, communicating with your executor, and consulting with an estate attorney can make the process smoother for your loved ones when the time comes.

If you have questions about probate or want to ensure your estate plan is set up properly, reach out to an attorney who specializes in estate planning. It’s always better to have a plan in place than to leave your family guessing.

‍