Frequently Asked Probate Questions

Jack E. Withem is a probate lawyer in Houston, Texas who has been caring for families' best interests in the same location for over 25 years.

The following information is not intended as legal advice and it does not create an attorney-client relationship.  The information given below is general in nature and individual fact situations may provide a different answer.  Probate law is very complicated, and you should consult with an attorney before taking any action.

What is probate?

Probate is the legal term for the court proceedings after a person's death.

Should I have a will?

Yes.  A properly drawn Will not only specifies who will inherit your property, it can name the guardian of your minor children and create a testamentary trust to manage the children's' inheritance until it is delivered to them.  Without a trust, the children receive their inheritance at age 18 and most 18 year olds are not equipped to make wise financial decisions.  A Will can avoid family discord and usually greatly lowers the legal costs of probate.  A Will is especially important If you have children from multiple marriages.

Who receives the estate when there is no will?

Where there is no Will probated the estate passes by intestate distribution to the next of kin.  The distribution varies depending if the property is separate or community, if there are children of one or more marriages and if there is a surviving spouse.  A pie chart showing the heirs and the fractions they receive can be found at

How are retirement accounts handled?
IRA, 401 K, 403B and other retirement vehicles usually have a person as the named beneficiary.  If there is no named beneficiary proceeds will pass through the estate to the beneficiaries named in the will.

What is a Transfer on Death Deed?

Texas has recently passed a law that allows a person to sign a deed that will transfer real estate to a named beneficiary on his death.  In some instances this type deed will remove the need for probate proceedings and the procedure should be explored.

What happens when I file a Will for probate?

A written petition asking for probate of the Will is filed with the  County Clerk. Citation is posted at the courthouse for at least 10 days.  If no contest is filed, a hearing will quickly be scheduled where the Judge will admit the Will to probate and name an Executor.

What does the Executor do?

The executor winds up the deceased's affairs, which is called "administration."  The Executor locates, collects and values estate assets, files an inventory with the court, gives notice to creditors, pays properly presented debts, and distributes the remaining assets to the beneficiaries.

Should I do anything if the will leaves everything to me?

A Will has no legal effect until the Judge signs a Judgment finding the Will to be valid.  If you wait too long, Texas law will not the Will to be probated and the  estate will pass by intestate distribution. Intestate distribution can be a big problem especially where there is a surviving spouse and adult or minor children.

What about joint bank accounts?

Banks provide several types of bank accounts. Clients are often surprised to learn that some joint accounts go to the survivor(s) named on the bank signature card regardless of what the Will provides.  The bank deposit agreement and not the style on monthly statements or the Will provisions will determine who receives the money in most cases. These joint bank account funds are subject to claims of estate creditors.

Do I have to use life insurance money to pay debts?

Life insurance proceeds are paid directly to the beneficiary on the policy. If the estate was named beneficiary, the proceeds are subject to creditor claims. If a person was named rather than the estate, the proceeds are outside of probate and are not subject to creditor claims. 

What if there is not enough money to pay all the debts? 

This is a complicated area and the Texas Probate Code provides a classification for each type of debt for which a claim is properly filed or presented and dictates the order in which claims are paid.  In some instances the homestead is passed free of all debts and the creditors are not paid.

Am I liable for estate debts?

If you signed admission papers for a nursing home or hospital you may have guaranteed the debt. Read what you sign carefully to avoid surprises. If you did not sign a contract creating contractual liability, you would probably only be liable to the extent you received property from the estate. Texas homestead laws effect this issue.    

How long does Probate take? 

In the simpler estates where a properly written Will is probated, probate can be completed in about six weeks.  If litigation or tax returns are required more time is necessary.

What other planning documents should I have?

Many people are benefited by the following:
  •  health care power of attorney which will name the person to make medical decisions if he cannot do so,  
  •  durable power of attorney which will name the person to make financial decisions should he become mentally incapacitated.
  •  HIPPA release which allows named persons to receive medical information,
  •  directive to physician which states their desire not to be kept alive by artificial means.

Jack E. Withem, P.C. 
Houston TX
Phone:  (713) 983-9755