What is Probate?
Warning: Probate is controlled by each state. All fifty states have their own individualized probate laws. In this article the law and process in the states of Texas and Washington are the focus. Readers from other states can read this article for general principles but must consult the law in the state applicable to them.
Probate is a noun and a verb. It is a place, an action, and a process! But again, as my style, let’s start with a little history.
In the middle ages, as we have seen in every movie set in the period, the king on his death bed, would whisper into the ear of his special confidant his dying wishes. Well, as you can imagine that was a perilous process to pass on one’s legacy. Enter the introduction of the written Will.
Yes, Wills were in existence since the invention of writing, and in use in ancient Greece and Rome. The purpose of which was to ensure one’s life long accumulation of property and legacy was passed down to your rightful heirs with instructions, duties, authority, and limitations.
Enter the probate system. It is a place – a court, with extensive monetary jurisdiction and powers. The purpose of the court is to assure the passing of assets from the decedent, (the person who died,) to heirs. Please note the significance of the last sentence – the passing of ASSETS! Therefore, if there are no assets there is no need for probate. Probate is solely for the passing of assets.
The cornerstone of the probate process is the existence of a Will. If there is no Will, the statutes of descent and distribution will be applied to determine the legal heirs. In Texas they are found in the Texas Estates Code, Chapter 201, and in Washington at Title 11 RCW Chapter 11.04.
After death the Decedent’s executor, person so named in the Will, presents the Will to the probate court. If the Will meets the legal requirements of a valid Will set out by statute, then the Will is “admitted into probate,” thus converting the Will from a wish, with no legal force, into a court order. This gives the executor named in the Will the powers specified in the Will, hopefully, if prepared correctly, letting the Executor step into the shoes of the decedent to transfer the decedent’s property to the people or institutions as instructed in the Will.
In summary, probate is a court, an action in probating an estate, and a process of accomplishing that task.
Should Probate be avoided?
Texas and Washington have very progressive probate statutes. When the Decedent has a valid Will, the probate system is modern, reasonably cost effective, and allows, in many instances, independence with limited court intervention. So, generally probate should not be avoided as a matter of course. However, each situation should be evaluated independently by a lawyer who handles probate cases.
Therefore, a written Will meeting the legal requirements of law is essential for every adult. Death is often unexpected and there may be children involved, or unexpected property. Wills are inexpensive and most lawyers can help for a reasonable fee.
Another reason for having a Will is to avoid an heirship proceeding if there is no Will. This arises when the decedent dies without having made a Will and the heirs discover property owned by the Decedent. Since the court does not know who everyone’s heirs are, an elaborate legal process is set up to guarantee who the Decedents heirs are. This proceeding adds expenses and attorney fees to the case and should be avoided by making a Will.
Unfortunately to answer the question of whether to avoid probate one must consult an attorney to review the facts in each particular case.
The information in this article is not legal advice. Please contact a probate lawyer for advice on your situation.
If you would like further information or help in these matters, please contact a probate lawyer, Louis David Levinson, is a probate lawyer in San Antonio and Seattle. I can be reached at (210) 829-5033, or (206) 660-7160 or email me at David@LevinsonLaw.com or www.levinsonlaw.com.