• Matthew A. Jirkovsky

What does it mean to 'probate' a will?

People often have wills drafted without understanding how a will is admitted to probate and acted upon. Some people, and unfortunately some executors, believe that simply having a will is enough. In actuality, a will must be probated.



Definition.


The common definition of 'probate' is, quite simply, "the official proving of a will."














'Probate' comes from Latin words probare ("to test, prove") and probatum ("something proved").



Purpose of Probate.


When you apply to probate a will, you are asking the court to literally test the will of the testator. A testator is simply the person making the will.


If there is a will involved the probate process is required, among other things:

  • to ensure that the will meets the formal requirements of a valid testamentary document,

  • to identify people or entities charged with carrying out or executing the terms of the will (and they are aptly called 'executors'),

  • to identify the beneficiaries under the will,

  • to allow creditors the opportunity to collect from the estate,

  • to allow the opportunity of others to test the will's validity, and

  • to ensure the terms of the will are followed.

Though, for various reasons, some wills are not probated. There are very legitimate reasons to not go through probate. Knowing and understanding those reasons are of incredible importance.



Probate is not just for wills.


Probate also applies for those without a will. An estate could be testate or intestate.


If you have a will, you are called a 'testator' and your estate would be considered testate. If you do not have a will, your estate would be considered intestate (or not testate) and would be settled in accordance with the laws of intestacy.


The probate process in intestate matters is somewhat similar those who have a will, but with some different and sometimes more expensive steps. When a person dies without a will, probate court is sometimes required to determine who the heirs of the estate actually are.


Though, sometimes an affidavit of heirship may suffice--making a judicial proceeding unnecessary.



Conclusion.


Put simply, probate is the judicial process used to administer the estate of a deceased person. A will must be probated within four years after the testator's date of death. If the will is not probated and real estate is involved, there might be a way to effectuate the testator's wishes and passing title by way of a muniment of title.


In order to determine whether the probate process is required and to determine the next steps, it is best to contact an attorney familiar with the probate process.



***This blog post should not be taken as legal advice. The information contained does not create an attorney-client relationship. The above is general information. I am a Texas attorney licensed to practice Texas law. This blog was written to provide information about non-specific Texas law. For specific questions regarding the probate process, you should consult a Texas attorney who practices in probate or estate law.***

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