1315 11th Street, Huntsville, Texas 77340 (936) 295-6394
Practical Wisdom, Trusted Advice, Personal Service



By Sam A. Moak

Do I have to Probate this Will?

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
A common question I am asked is what is probate and do I need to probate this Will?  Estate administration is the management and settlement of a deceased person’s estate by a personal representative approved by the court.   Estate administration does not require a Will.  Probate is the formal process of administering a person’s estate when they had a Will. Probate may not be necessary when the decedent’s estate is so small that no action is necessary to distribute the property to the beneficiaries or heirs.

However, probate is required in most other circumstances.  In fact in a recent case the court ruled a Will not admitted to probate is not effective for the purpose of proving title to real estate.  Ratcliff vs. Polk County Title, Inc., No. 09-04-124-CV, 2004 WL 1925447 (Tex. App.-Beaumont. Aug.31,2004, pet.denied).   In this case a title company was sued for defamation after the title company issued a title report (i.e., Commitment) that included a statement that Mrs. Ratcliff, a deceased owner of real property, died intestate.  Mr. Elijah Ratcliff, Mrs. Ratcliff’s son and named executor in Mrs. Ratcliff’s Will, sued the title company on the grounds that Mrs. Ratcliff did, in fact, have a Will and, therefore, the title report was defamatory.  The District Court rejected Mr. Ratcliff’s theory.  The Appellate Court affirmed the District Court’s ruling and  pointed out that although Mr. Ratcliff had previously filed an application to probate Mrs. Ratcliff’s Will, the Will was never presented for action in the Court.  Citing Texas Probate Code Section 94, the Appellate Court ruled that until a Will has been admitted to probate, it is not effective for the purpose of proving title to real property; thus, in that context, the title report was not defamatory.

In Texas, there are several different methods of administering an estate, some of the more common are Independent Administration, Probating the Will as a Muniment of Title, filing a Small Estate Affidavit, and filing an Informal Family Settlement.

If the decedent owned real property at their death, then something must be done to properly transfer the property.  Usually this is not discovered until the family of the decedent decides to use, sell, or partition the property. It could also arise if there is a dispute as to payment of expenses or taxes on the property.  Without a Will this process can be complicated, involve contacting many heirs, and take a great deal of time.

Please note there are limitations as to which form of probate may be used depending on the situation. Therefore, check with your attorney to decide which method of estate administration is right in your particular circumstance.  It could save you time and money.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.