Is Probate Necessary?
Post by: Lesley Hempfling
Your spouse has just passed away and you are the sole beneficiary of his estate under his Will. In fact, all of your accounts are titled "joint with right of survivorship," you are the beneficiary of all of the non-probate assets (e.g. IRAs, 401Ks, life insurance), and you bought your home together when you married and are both on the deed. There isn't any reason to go through the hassle of probate, right? The problem that will arise in this scenario is with selling the home - either while you are alive or later when your beneficiaries need to sell the home to settle your estate. Under community property laws in Texas, you only own your 1/2 of the home outright. Your spouse's 1/2 passed to you via his Will, but if you do not either probate the Will or file some other type of notice in the real property records in the county where your home is located, then a title search will turn up this deficiency and will most certainly hinder the sell of your home. If you have a validly executed Will, then probating the Will is truly the "gold standard." However, there are other avenues for dealing with the transfer of title to real property that may also work depending on your individual facts. Other options may include: filing an Affidavit of Heirship in the real property records or probating the Will as a Muniment of Title.