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Probating Your Spouse’s Will

A common misconception is that you do not have to probate a Will when your spouse dies. Cheryl P. Rose’s column, Title Issues Can Complicate Real Estate Transactions, in the Senior Living section of this week’s Houston Chronicle, has some excellent points on why you must probate your spouse’s Will.

Probate or 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 or establishing heirship if they did not. The formal process of probate in Texas is normally very simple and quick. However, what can take a great deal of time is the transfer of the decedent’s assets if they have not properly planned ahead. Family dynamics can also complicate or delay matters, particularly if a child predeceases a parent or it is a blended marriage with children from prior relationships.

Probate may not be required when the decedent’s estate is very small, but is required in most circumstances. In fact in a fairly 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. 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, the Texas Estates Code controls disposition of the estate. This process can be complicated, involve contacting many heirs, and take a great deal of time. If the deceased spouse has children from outside the current marriage, those children also will have rights to the property. In the scenario just mentioned, the children of the deceased spouse end up owning a portion of the property along with the living spouse. However, neither can sell the property without each other’s approval. This is a very common issue and can often lead to conflict.

Please note that there are limitations as to which form of probate may be used depending on the situation, and no Will shall be admitted to probate after the lapse of four years from the date of death. You should not delay seeking the advice of your attorney to decide which method of estate administration is right in your particular circumstance. Having a well written and current Will, particularly with a blended family, 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. www.moakandmoak.com