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Do you need to probate a will that leaves everything to a spouse?

Do you need to probate a will that leaves everything to a spouse?

Full question:

Person dies, left will, not contested and leaves all to spouse. Do you still need to probate the will or can you just fill out an Affidavit of Heirship? From what I read, Affidavit of Heirship is for when you don't have a will.

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

Answer:

Yes, you typically need to probate the will even if it is not contested and leaves everything to the spouse. Probate is the legal process that validates a will and allows for the distribution of the deceased's assets according to their wishes. An Affidavit of Heirship is generally used when there is no will, to establish the heirs of the deceased. Therefore, in this situation, you should proceed with probate to ensure the will is recognized legally.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

How long do you have to file probate after death in California without a will?

In California, you generally have 40 days from the date of death to file for probate, even if there is no will. However, it’s advisable to start the process as soon as possible to avoid complications. If you miss this deadline, it may affect your ability to administer the estate properly. Always consult with a legal professional for specific guidance related to your situation. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

Can an executor decide who gets what without a will?

No, an executor cannot decide who gets what if there is no will. In the absence of a will, the estate is distributed according to state intestacy laws, which dictate how assets are divided among heirs. The executor's role is to carry out the distribution as specified by law, not to make personal decisions about asset allocation. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

What power does an executor have if there is no will?

If there is no will, the executor's powers are limited to administering the estate according to state intestacy laws. This includes gathering assets, paying debts, and distributing the remaining assets to the rightful heirs as determined by law. The executor must follow legal procedures and cannot make unilateral decisions about asset distribution. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

Can a beneficiary override an executor?

No, a beneficiary cannot override an executor's authority. The executor is legally appointed to manage the estate and must act according to the will or, if there is no will, state intestacy laws. Beneficiaries can raise concerns or objections, but they cannot unilaterally change the executor's decisions. If disputes arise, they may need to be resolved in court. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

Can an executor decide who gets what if there is no will?

No, an executor cannot decide who gets what if there is no will. In such cases, the estate is distributed according to state intestacy laws, which specify how assets are divided among heirs. The executor's responsibility is to ensure that the distribution follows these legal guidelines, not to make personal decisions about the estate. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

Who completes an affidavit of heirship?

An affidavit of heirship is typically completed by an individual who is knowledgeable about the deceased's family and their heirs. This could be a relative, a close friend, or an attorney. The affidavit serves to establish the heirs when there is no will, and it must be signed in front of a notary public. It's important to ensure that the information provided is accurate to avoid legal issues later. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

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