Probate Frequently Asked Questions
1. How long can a Will be filed for probate?
Generally, you have 4 years from the date of the Decedent’s death to file his or her Will for probate. Although a limited exception applies with the Muniment of Title form of probate, the general rule applies that you cannot file the Will more than 4 years after the death. In the event that the Will is never filed and the 4 years lapses, then the Decedent is treated as having died without a Will, and his heirs determined under Texas law will be entitled to his assets.
2. How is property divided if someone does not have a Will?
If someone dies without leaving a proper Will, his assets will be divided and distributed to his heirs, as they are determined by Texas law. It is important to note that the “heirs” may not be the same people that the family might consider to be the heirs. Rather, the Probate Code lays out a very specific method for determine the identity of the Decedent’s heirs and also the shares of the Decedent’s estate that each heir is entitled to share.
3. Is a handwritten Will valid?
In order for a handwritten will to be valid, it must be written completely in the handwriting of the Decedent. No portion of the Will can be written in the handwriting of another person. While the handwritten Will does not require the signature of witnesses, it does require the signature of the person making the Will, and it requires that the Will express the Decedent’s true intent as to the disposition of his estate.
4. Are other family members liable for the Decedent’s debts?
When someone dies, any creditors that he may have at the time of his death are entitled to recover their debt only against the assets owned by the Decedent at the time of his death. Other family members are not liable to have to pay any debts of the Decedent. If his assets are insufficient to pay all of the debts, any unpaid debts will simply have to be cancelled by the creditor.
5. Who has a homestead right in the Decedent’s home?
If the Decedent is survived by a spouse, his or her spouse has the absolute right to occupy the Decedent’s home for as long as the spouse is alive. Of course, if the home has a mortgage or other expenses, the spouse will be liable for those expenses. Likewise, a minor child living in the Decedent’s home at the time of death has the right to continue living in the home until they are no longer a minor. Also, an unmarried adult child of the Decedent who was living in the Decedent’s home at the time of death, has the right to live in the home.
