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A will can't be used to prove property transfer until it is validated by the courts. The validation process is known as "probating the will" or "admitting the will to probate." It is commonly followed by estate administration. Administration is the process of collecting, inventorying, and distributing the property.
To probate a will, you'll need to file an application in a probate court. This is typically done in the county where the deceased had lived. Other rules will apply if the person lived out of state.
The court will schedule a hearing to examine the will and listen to any objections. If the judge declares the will valid, it will be admitted to probate. If an executor or administrator is appointed at the same hearing, they can now begin the administration process.
If there is a will, you may be able to probate it as a "muniment of title." This option is available when:
This faster alternative allows the heirs to collect the property directly from banks and other institutions. There is no administration or executors. However, the beneficiaries will likely need an attorney to file the application with the court.
Muniment of title is commonly used when the only asset transferred by the will is real property. If the court approves the application, you'll need to file the court order and a copy of the will with the county clerk's office. This is done in the county where the property is located and helps establish a chain of title.
A valid will must be in writing, signed, and attested by two credible witnesses. If the will is written completely in the person's own handwriting, witnesses are not required. Handwritten wills are known as "holographic" wills.
If the will had witnesses, they may be called to testify in court.
In addition, the the maker of the will must have been of sound mind, proper age, and have had an intent to write a will. All these aspects will be examined at the probate hearing. At the hearing, anyone can raise objections and contest the will's validity. If the will is found invalid, the property will pass to the heirs as if there was no will.
For more information about writing a will and sample forms, see our Wills and Directives guide.
There is a 4-year period to file a will for probate. After that, the will may be considered invalid, and property will be distributed as if there was no will. The court can sometimes accept a will after 4 years if the applicant can show an acceptable reason for delay.
In Texas, executors don't have a legal obligation to probate a will. If they choose not to, they (or another person who has the will) must surrender it to the court clerk. The clerk will notify the executor and/or beneficiaries and give everyone a chance to probate it.
Avoiding probate can make it difficult or impossible to transfer the property according to the will. However, sometimes the estate doesn't have enough assets to pay for the probate process. In this case, it may not make sense to probate it. The decision to probate or to not probate the will is best made with the advice of an attorney.
When someone applies to probate a will, the court will post a public notice at the courthouse or online. The notice informs the public about the application and the date of the upcoming hearing.
Most beneficiaries and potential heirs will be individually notified about the probate proceedings. This may happen before or after the will is admitted to probate. There is no official gathering of heirs or "reading of the will."
Once a will is filed for probate, it becomes a public record. Interested parties can request a copy from the court.
Property that isn't mentioned in the will is called a "remainder," "residue," "residuary estate," or "residuary property." Remainder property can also include assets that cannot be transferred as instructed. One example may be when a named beneficiary dies before the person who wrote the will.
Many wills include specific language that says who inherits any remainder property. This section of the will is commonly known as "residuary clause." If there is no residuary clause, remainder property will pass to the heirs as if there was no will.