Dear Mr. Premack: My father passed away a couple of years ago without a will. My parents were divorced at the time and he was survived by his second spouse. Is it mandatory for his estate to be probated and who should file? – TF
According to the Texas Probate Code, when a person dies without a Will, the probate administration can be initiated by “any interested party” (sound familiar?). When there is no Will, there is no nominated Executor, so it is logical that the application would be submitted by someone who was interested in becoming Administrator of the estate. The Probate Code sets up a priority list of persons who may serve; top priority goes to the surviving spouse if she desires to serve. If not, next priority goes to next of kin in the order of descent (ie, children first, grandchildren second). If none of them apply, then a creditor seeking payment of a debt may apply to be Administrator. If no creditor applies, then “any person of good character residing in the county” may apply, and failing that, any “other person not disqualified” by law may apply.
Probate of the estate must be opened before the general four-year statute of limitations runs out. Since it has been “a couple of years” since he died, you are likely still within the allowable period. But if he has no remaining assets and no debts, then probate is most likely unnecessary. However, since it has been a couple of years, it is unlikely that you want to probate to clear his debts (they would have forced you to act more promptly), so I assume your father owned some land or other asset which you now seek to have legally distributed. If so, probate is necessary.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, April 23, 2012