We’ve all heard it: avoid probate, probate is expensive, and probate is lengthy and complicated. Maybe. But, it doesn’t have to be, especially in Texas.
I have often heard something along these lines from prospective clients:
I have my father’s Will, and it names me as the Executor. According to the Will, my siblings and I are to split the house equally. Can I just sell the house and give each of my siblings their portion of the proceeds?
It’s not that simple. But, it’s also does not have to incredibly complicated, if the Will is set up correctly. To understand the legalities of a Will and how the decedent’s property is divided and passed down to the beneficiaries, we need to start with some legal concepts. And, remember, we are dealing with Texas Wills and probate laws, so this information may not apply in other states.
First, the Will.
Many different types of documents can be a Will. It can be typewritten. It can be handwritten. But, it cannot be digital. It can be witnessed. It can be self-proving. It can also fail at being a Will. The general test for a valid Will is whether or not there was testamentary intent and whether or not the testator had the capacity to create a valid Will. Additionally, a valid Will must generally be admitted to probate by a probate court for its provisions to be effective.
Testamentary intent is a plain showing within the document itself that the testator (person making the Will) subjectively intended the contents of the document to be a Will at the time the Will was executed or signed. Testamentary capacity is the testator, at the time the Will was executed, must have been at least 18 years old, have been of sound mind, have understood the extent and nature of their property, have known the relationship between themself and the proposed beneficiaries, and not affected by a disorder of the mind or insane delusion.
If the document fails testamentary intent or capacity, or both, then the Will cannot be admitted to probate. This would result in the Will being declared invalid by the probate court. If the Will is invalid, the probate court may then proceed under intestacy provisions and determine the decedent’s heirs at law.
A Will may name one or more beneficiaries and may even contain provisions to specifically exclude one or more heirs from inheriting any portion of the estate. It may also include a provision that cancels out a beneficiary’s inheritance should that person contest the Will. Contesting the Will is simply challenging the Will or its provisions.
Second, the Executor.
A valid Will does not necessarily have to name an executor. Though not required, it is generally best to (1) name an executor and alternate(s), (2) spell out whether the testator intends the executor to be independent or not, and (3) state the powers the executor may and may not utilize. For the Will to become effective and its provisions carried out, the Will must be accepted to probate by a court.
Though a Will may name an executor, or executrix, that person does not automatically become the executor upon the decedent’s death. Only a probate court can appoint an executor. And, an executor only obtains his or her power to act from the court and the Will, once the court accepts the Will to probate. The probate court does not have to appoint the person named as executor. Beneficiaries under the Will and heirs at law can intercede in the probate court and contest the executor’s appointment or his or her actions or even the Will itself.
An executor is not a person who receives property under a Will. The executor administers the estate. The executor may be either independent or dependent, depending upon the terms of the Will and the appointment of the court.
The executor has a fiduciary duty to gather property of the estate, safeguard the property, and disburse the property according to the Will. The fiduciary duty to the estate is combined with a fiduciary duty to the beneficiaries of the Will. Now, this does not mean that the person named and ultimately appointed as executor cannot also be a beneficiary, but you must think of the executor and the beneficiary as two separate legal persons. So, even I am both an executor and a beneficiary, I may hold two legal positions, but they are not interchangeable.
Third, the Beneficiary(ies).
Beneficiaries are people, or organizations, who have a right to receive property under the Will. Now, sometimes the same person is both an executor and a beneficiary – but that person has two very different roles and different responsibilities in each role. Normally someone, like the proposed executor or a beneficiary or heir, starts a lawsuit to probate the Will. The lawsuit usually asks the court to (1) admit the Will to probate, (2) appoint an executor, and (3) provide letters testamentary.
When the probate case is opened, certain notices must given. The beneficiaries must be given notice. The general public must be given notice. And creditors must be given notice. It is most often these notices that cause others to come forward and contest the Will, the appointment of executor, or even the distribution of property. This is also how beneficiaries can contest the actions of the executor. If someone comes forward to contest the Will, the executor, or the executor’s actions, this is when probate cases in Texas can become complicated.
So, back to the original question: can I just sell the house and give each of my siblings their share of the proceeds? Maybe. First, the Will would need to be admitted to probate. Then, once the court appoints an executor, the executor would need to sell the house, if permitted in executor’s powers. Finally, the executor can distribute the proceeds to the beneficiaries. However, all of this assumes a valid Will which gives the executor the power to sell real estate and a valid bequest of the house proceeds to the beneficiaries. If the executor did not have the power to sell, then the house would simply be deeded in equal parts to the siblings. Then the siblings could do as they please with their portion. But, if no sibling wants to keep the house, selling it and dividing the proceeds is common.
Contact our office to help with your probate. We can walk you through the entire process and provide advice along the way.