Are There Advantages to Probating an Estate if it's Not Required?

Full question:

My father passed away in late January survived by his wife of 60 years. He had a simple will but all assets (house, CDs, mutual funds...) wwere in joint tenure with his wife. Are we required to probate the will in the state of Texas? If not, are there advantages if we probate the will?

• Category: Wills and Estates
• Subcategory: Probate
• Date: 04/07/2025
• State: Texas

Answer:

The answer will depend on whether the assets are transfer on death assets, or joint assets with a right of survivorship. Such assets go to the named beneficiary outside the probate process. If it is a survivorship account, or transfer on death account, it passes outside the probate process. That means it will not be included as part of the estate that either passes under a will or according to state intestacy laws (applicable when there is no will). If the account is held as tenants in common, it's possible that the deceased owner's share could pass to heirs

When a person dies, their assets are distributed in the probate process. If a person dies with a valid will, an executor is named to handle the distribution of the estate. The court will issue testamentary letters to the executor, giving the authority to handle the affairs of the deceased. To dispose of the real property interests of the decedent, the executor executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies, the executor of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under the will.

In Texas, where the value of the entire assets of the estate, not including homestead and exempt property, does not exceed $50,000, a small estate may be administered by a small estate affidavit. After the affidavit has been approved by the court, the affidavit may be used to collect debts owed to the decedent.

The affidavit is filed with the clerk of the court in the county where the deceased resided. It lists certain information required by statutes, such as all of the known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant family history or other facts concerning heirship that show the distributees' rights to receive the money or property of the estate. Once approved by the court, the affidavit may be presented to those who owe debts to the deceased in order to collect the property or money owed. Policies regarding distribution without an affidavit vary by company policy.

One advantage of probate is that when a notice to creditors is published, all debts and liabilities of the decedent are terminated with respect to creditors who fail to file a claim against the estate within the required period. Another advantage of probate is that the probate court can resolve any disputes involving the decedent's estate and disposition of its assets.