Probate law and representation are often necessary for many families following the death of a loved one. After all, a court’s goal is to determine the rightful owner of the deceased’s assets and legally transfer them to the appropriate family members or beneficiaries — especially in cases where there isn’t a will. But probate’s reputation for being complicated, confusing, drawn-out, and emotional inevitably sparks a slew of probate myths that sound true but are often overblown or don’t represent most cases.
Since protecting our client’s best interests is priority No. 1 at Christman | Daniell Attorneys, we want to share a few of the more common myths and misconceptions about probate that can send you and your family down the wrong path if you’re not careful.
5 Common Probate Myths
Myth #1 — The state gets everything if I die without a will
The legal term for dying without a will is called dying intestate. But unless a rare situation exists where no relatives can be found, the state isn’t going to confiscate everything for itself during probate. What will happen if there isn’t a will to guide a judge or the state on how to proceed is that key decisions will be made based on the Texas Estates Code, and that might not be what you had hoped. Probate rules vary from state to state, but your spouse and children are generally first in line to inherit, although maybe not in the order you would expect.
Myth #2 — Having a will avoids probate
This is one of many probate myths we love busting. While probate isn’t always necessary, it is often required or recommended — even if there is a will. Your will simply tells the probate court what your wishes are. If executed correctly, the court will verify everything (appoint an executor, approve inventory of the estate assets, confirm heirs, etc.) and allow your assets to be distributed accordingly.
Myth #3 — Executors can’t be beneficiaries in my will
Unless you choose a beneficiary who doesn’t qualify as an executor, our clients traditionally name a loved one (spouse, grown child, sibling, etc.) as both a beneficiary and the executor of their will. There isn’t a law in place that says you can’t. Plain and simple.
Myth #4 — My debts will be eliminated when I die
Unfortunately, this is also one of many probate myths that won’t go away. A significant piece to settling an estate involves paying off unpaid debts from the funds available in your estate. Creditors must comply with certain requirements in order for an estate to be obligated to pay a debt, but many creditors are savvy about the process and submit their claims appropriately. Debts can include taxes, funeral expenses, and more. Once those debts are satisfied, the remaining assets can be distributed accordingly.
Myth #5 — The probate process takes years to complete
While it does take time to get the paperwork in order, allow creditors to file potential claims, and pay all debts and taxes, many probate matters can be resolved in a reasonable timeframe. The only instances where this might not be true is if the family challenges the will or can’t work together to settle everything. Occasionally, very large and complicated estates — including those that still receive income after a loved one has passed away — can take longer to settle. However, these don’t typically represent most probate cases.
Probate involves the formal legal process of administering an estate after the death of a loved one, including gathering the estate assets and potentially paying the deceased’s debts from those assets. Whether your loved one did or didn’t have a will, it’s essential to consult a probate attorney to determine the next steps. The attorneys at Christman | Daniell Attorneys, believe no one should go through the probate process alone. Our job is to guide you through that process and do all the heavy lifting so that you don’t have to.
We have an unwavering commitment to helping our clients at each stage of the process.
Please call Christman | Daniell Attorneys, for your legal needs today!
Please consult an attorney for advice about your situation. The material on this website and in this or any blog article we publish are for informational purposes only and do not constitute legal advice. Christman | Daniell Attorneys, believes in tailoring legal advice and solutions to your circumstances.
We have an unwavering commitment to helping our clients at each stage of their legal situation.
