What Happens If You Don’t Go Through Probate in Texas?

What Happens If You Don’t Go Through Probate?

Being appointed the executor of someone’s estate is a tremendous responsibility. You have been named as the person whose role it is to execute the estate plan of another person after they have passed away. Not only are there legal responsibilities to engage in, but also moral duties that you will likely feel that you need to uphold. In short, it is no small task to be asked to act as the executor of an estate and to ultimately accept that responsibility.

Going through probate means that you would have needed to have asked a probate court to grant you the authority to distribute assets to beneficiaries under the will. Additionally, if the person whose will you are acting as an executor under has any debts that need to be paid, then those creditors have first dibs to receive payment before any beneficiaries.

For many people who expected to receive money or property under a will, this can come as quite a shock. For most estates, even ones that have a will, it will be necessary to go through probate. While it can be time-consuming and somewhat expensive, it is a way to ensure that you have fulfilled all your legal duties as executor.

I have run into situations where a person who has accepted the responsibility to act as the executor now is having second thoughts.  Even if you have other activities that you would prefer to engage in it is not wise to forego probate just because it seems easier or less stressful for you to do so. Rather, it would pay to learn about the challenges and consequences of not going to probate court and what that means for you as the executor of a person’s will and their estate.

Do You Have a Choice to Go Through Probate in Texas? 

It depends. In most situations, when you are serving as the executor of a person’s estate in Texas, it will be required for you to go through probate to abide by the law, the wishes of the deceased individual, as well as the priority order of any creditors. For most people, it will be necessary to go through the probate process because most people have a degree of assets and/or debts that need to be acted upon. Very few people have no property and no debts. If you find yourself in a position where your deceased person’s will lists no property or debts, then you may be able to avoid filing for probate.

In all other circumstances, you should understand that probate is the only legal way to transfer the assets of the deceased individual for whom you are acting as executor. Probate court provides the legal authority to change the name on the titles to vehicles, homes, and other assets if need be.

Assets

Imagine a beneficiary of the deceased person not being able to move into or sell a home that they had been promised in a will because you did not go through the probate process. You place yourself in a position of liability for not having done so.

On the flip side, with all these types of property remaining in the name of your deceased person, that means that his or her estate will incur penalties, taxes, and other costs associated with property in their name. Unless you are in a position to pay these bills yourself, you should work to ensure that title to these properties and assets can be transferred efficiently. Otherwise, these sums can build over time into large figures.

Creditors

Another element to this discussion is that creditors, in many cases, will stop pursuing a debt or obligation after a person passes away. This is especially true if the creditor becomes aware of the reality that the deceased person’s estate has no property and no means to pay them. In other words, do not be surprised if many creditors leave the estate alone once you begin the probate process.

This can key them into the fact that your person’s estate has no funds to pay them and that they had the best look to the next debtor for payment rather than trying to no avail to receive payment from your deceased individual’s estate.

Executing the Will

One of the key points to understanding how a will works is that you must be willing to execute the terms of your will- no matter what. Of course, there are limitations to this rule that center around working within the confines of the law. If the will asks you to do anything illegal, then you should not follow through with that instruction.

On the other hand, if your mother passes away and leaves all her property to your cousin, then your role as her executor is to probate the will and pay your cousin their fair share. The failure to do so will result in extreme legal consequences.

Understanding the Consequences of Not Probating a Will

The main purpose of acting as the executor of a person’s estate is to be able to execute on the person’s wishes as contained in the will itself. If you are unable to do so, then you may as well not have even served as such. With that said, if you do not go through the probate process, then the deceased person’s assets will not legally be transferred over to the heirs or beneficiaries.

Keep in mind that you can physically transfer property to the people, but that does not mean that you are doing so legally. If you transfer several pieces of property but have yet to pay creditors, then you are going to run into some trouble.

Going through probate means that you will be much more certain to have followed the law as far as doing what has to be done.

Part of the purpose of having a will is to be able to move property along when you pass away. This not only benefits the other people, but it also benefits the deceased person as well.

Consider what happens if you are the executor for a person’s estate and you are being told to transfer property to their siblings after he or she passes away. If you do not go through probate and do not transfer the property, not only are you breaking the law by not following the will, but you are also causing the deceased person’s estate to incur taxes and fees associated with the property in the meantime.

That money will need to be paid by someone before the property can be transferred, especially if a lien is placed on the property.

Another aspect of not probating a will is that the deceased person’s creditors will have no clue that he or she has passed away. This is significant if only because they will continue to pursue the debts in their normal fashion. Sending letters, making phone calls, and the like are appropriate as long as they are legal in Texas.

However, they are not only unpleasant after a person has passed away, but are unlikely to wind up getting their money. The probate process allows you to notify any creditors of the deceased person about their passing in hopes of allowing them to come forward and attempt to collect on their loans.

A knowledgeable and local probate attorney can guide you through the process, ensuring you follow the law and that assets are transferred legally.

Responsibility of the Executor

Part of accepting the responsibility of acting as the executor of this person’s will means that you accept the responsibility if something goes wrong. Not following the plans laid out in the will as far as distributing property is a big “no-no.” Not only are you harming this person’s estate, but also the lives of the beneficiaries. There are legal consequences for holding onto the will and not going through probate. Whatever expenses may be incurred by the individual’s estate or the heirs of the deceased person may become your responsibility.

The above is almost a best-case scenario. Consider that if you do not go through probate, not due to lack of knowledge but out of wanting to benefit yourself somehow, then you may be prosecuted for doing so. Putting your interests ahead of the deceased person is a crime in and of itself once it gets to the point where this is being done to benefit you financially.

Rather than doing something like this, you should speak with an experienced probate lawyer to learn ahead of time what the consequences are, so the thought won’t even cross your mind.

Reach Out to Us: Trusted Helotes & San Antonio Probate Attorneys

Neglecting the probate process can lead to serious complications, potentially jeopardizing the distribution of assets and causing legal challenges for your loved ones. At the Owens Law Firm, our dedicated probate attorneys in Helotes and San Antonio are here to ensure your estate is handled with the utmost care and in accordance with the law.

Don’t leave the future of your assets to chance—consult with our experienced probate attorneys to navigate the probate process efficiently and protect your legacy.

Contact the Owens Law Firm today at  210-985-9877, and let us provide you with the guidance and support needed to safeguard your estate for the ones you care about most.