Probate Law FAQs

Welcome to the Kazi Law Firm! We are a boutique law firm steeped in Texas tradition personifying the warmth and congeniality consistent with southern hospitality. We believe in preserving integrity and professionalism with true Texan charm, staying true to our roots, while providing essential, affordable legal services to all. Located just north of Dallas, Texas in the rapidly growing suburb of Frisco; the Kazi Law Firm concentrates on contracts drafting and review, wills & estate planning, real estate law, landlord, tenant, mediation, and general business law needs.

We compiled a list of commonly asked questions we get in the area of probate law. By definition, probate is the judicial process whereby a Will is “proved” in a court of law and accepted as a valid public document that is the true last testament of the deceased.

• How long do you have to probate a Will?
  • You have 4 years from the date of the Decedent’s death to file his or her Will for probate. Although a limited exception applies to the Muniment of Title form of probate, the general rule applies that you cannot file the Will more than 4 years after the death. If the Will is never filed and the 4 years lapses, then the Decedent is treated as having died without a Will (intestate), and the heirs determined under Texas law will be entitled to his or her assets.
• Does a surviving spouse need probate in Texas?
  • Yes. The surviving spouse status of someone who died does not entitle you to automatically avoid the probate process. For example, under a traditional deed in Texas, a home does not automatically transfer to the surviving spouse on death. Likewise, cars, stocks, and other assets do not automatically transfer to the surviving spouse. If the Deceased owned any of these assets, then his surviving spouse will likely need to utilize the probate process.
• When is probate not necessary?
  • Probate is not necessary when the Deceased did not own any assets that require the probate process to transfer the assets from the Deceased to his intended beneficiaries or heirs.
• Does a will have to be probated in Texas?
  • If the Deceased owned any real estate or other property (bank accounts, life insurance, cars, stocks, etc.) that did not have beneficiaries named by contract, then the Will of the Deceased will need to be probated in order to transfer title from those assets to the beneficiaries under the Will.
• Are joint accounts subject to probate?
  • If joint accounts are established with “rights of survivorship,” then they are not subject to probate. However, the default rule in Texas says that joint accounts are not created with rights of survivorship unless the account holders specifically designate in the account paperwork when the account is created. If no rights of survivorship are created, then the account is subject to probate.
• Do you need a lawyer to probate a Will?
  • Yes, in general, a lawyer is required to probate a Will. Anytime that a person is appointed as an executor of an estate, they are required to be represented by an attorney.
• How is property divided if someone does not have a Will?
  • If someone dies without leaving a proper Will, his assets will be divided and distributed to his heirs, as they are determined by Texas law. It is important to note that the “heirs” may not be the same people that the family might consider to be the heirs. Rather, the Estates Code lays out a very specific method to determine the identity of the Decedent’s heirs and also the shares of the Decedent’s estate that each heir is entitled to share.
• Who has a homestead right in the Decedent’s home?
  • If the Decedent is survived by a spouse, his or her spouse has the absolute right to occupy the Decedent’s home for as long as the spouse is alive. Of course, if the home has a mortgage or other expenses, the spouse will be liable for those expenses. Likewise, a minor child living in the Decedent’s home at the time of death has the right to continue living in the home until they are no longer a minor. Also, an unmarried adult child of the Decedent who was living in the Decedent’s home at the time of death has the right to live in the home.
• Are other family members liable for the Decedent’s debts?
  • When someone dies, any creditors that he may have at the time of his death are entitled to recover their debt only against the assets owned by the Decedent at the time of his death. Other family members are not liable to have to pay any debts of the Decedent. If his assets are insufficient to pay all of the debts, any unpaid debts will simply have to be canceled by the creditor.
• Why do you not list all my assets and accounts line by line in a Will?
  • The Will document will not list all the assets and bank accounts by account number (whether in the US or abroad). The Will is all-encompassing and covers all assets that a person owns at the time of their passing. The main reason for not itemizing accounts is that as time passes, accounts, holdings, properties, etc., change and may not be current at the time of probate. Also, please remember that not all property is subject to probate.
  • Here’s a list of property and assets that aren’t covered by a Will. These assets go directly to the beneficiaries named, and thus, do not have to go through the probate process.
    • Retirement plan assets from IRAs and 401Ks (when you created these accounts, you completed a beneficiary designation form that stated where your remaining assets would go upon your death)
      • Life insurance policy proceeds (you have designated beneficiaries here as well)
      • Annuities
      • Payable on Death (POD) bank accounts (POD accounts can be set up for checking and savings accounts, money market accounts, CDs, etc. You name the beneficiaries that will receive money in the account at your death)
      • Transfer on Death (TOD) investment accounts (stocks, bonds, brokerage accounts)
• Does a Will have to be probated in Texas?
  • If the Deceased owned any real estate or other property (bank accounts, life insurance, cars, stocks, etc.) that did not have beneficiaries named by contract, then the Will of the Deceased will need to be probated in order to transfer title from those assets to the beneficiaries under the Will.

I built my law practice on the premise of being a life raft in a sea of sharks. I want to be an advocate for those that have been wronged and are too intimidated to seek help. My firm is here to explore your options, guide you through your legal journey, and give you that safe space to ask questions! There’s no such thing as a stupid question…Only the ones you don’t ask. So, my question to my clients is not “do you have any questions?” But rather “what questions do you have?”

As always, the Kazi Law Firm is standing by to help you in your time of need. Don’t hesitate to contact us today. We specialize in real estate law, landlord-tenant disputes, immigration, and wills & estate planning. Family is at the core of our practice. Just as we treat our family with respect and understanding, we treat yours. Come join the Kazi Law Firm family today!

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