Search Site
Menu
Probate — Overview

In a civilized society, a legal mechanism for dealing with a deceased person’s property is essential. Think of the chaos that would result if, when someone died, the law allowed anyone free access to take all or any part of the deceased person’s property on a “first come” basis. Instead, we have developed a system that protects and sometimes directs the distribution of property on a person’s death. Our laws recognize that some order must be maintained in the situation and so they provide, among other things, for what is called the right of “freedom of testation” and a legal process to deal with those estates that have exercised that right, as well as those that have not.

Freedom of testation simply means the right to leave your property on your death in almost any manner you choose. Few people realize that this is not a “natural” right. It would be quite possible, for example (though it would certainly meet with resistance), for the government to rule that on a person’s death, all of his property would belong to the government. Such an approach, however, would, among other things, discourage the acquisition of property and would soon undermine our capitalistic system. Therefore, we are “allowed” to acquire property freely during our lifetime, to keep it or dispose of it as we wish during that period, and on our death, we are “allowed” to decide, subject to certain obligations to keep our spouse and children in mind, who will get what is left. These decisions, if you want them to be carried out must be reflected in a valid will or some other legal disposition; otherwise, the laws of the state will decide how your property will be divided. Whether or not you decide to exercise your “freedom of testation” and make a will, the division and transfer of the property that is part of your “probate estate” can be done only by the Probate Court.

When we talk of the “probate estate” (or “probate property”) in this sense, we mean any type of property that stands in your name alone at the time of your death or that would require action on the part of your executor or administrator to transfer. It would not include, for instance, jointly held property or assets that are payable to a named beneficiary at death. It includes only property over which you alone would have control. From a “legal” perspective, therefore, if on death we wish to transfer any of our “probate” or “estate” property to someone who survives us, or if our estate is to be given to the spouse and children equally because we left no will, just how would this be accomplished? They could not simply “take” the property, because they would not have legal ownership of it. And on what legal grounds could they support their ownership if they did take it? This is why we must have some orderly legal process if we are to recognize any rights to transfer property at death, and this is where the probate process comes in.

Therefore, whether you decide to write your own will or to have no will at all, whether you are a beneficiary of an estate or a creditor, and whether you think there will be no disputes or you can’t wait to start one, it is very important for you to understand how the probate process works. This is because probate is the system that determines and governs the distribution of the probate estate to the heirs and beneficiaries, the payment of estate debts after death, the resolution of disputes and claims against the estate, and contests against the will.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

Contact a Dedicated Texas Business Lawyer To Schedule a Consultation
Call 281-367-1222 or contact us online to schedule a meeting.

Strong In Action

  • Spring 2021

    The Strong Firm prevails in dispositive motion regarding Texas economic loss rule resulting in dismissal of claims again party.

    Read More
  • Spring 2019

    The Strong Firm successfully forecloses first priority lien against multi-million dollar commercial asset.

    Read More
  • Spring 2021

    The Strong Firm secures writ of reentry after unlawful lockout of commercial tenant.

    Read More
  • Spring 2021

    The Strong Firm prevails in writ of mandamus proceeding involving denial of temporary restraining order to stop foreclosure sale.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
  • Peer Rated 2022 Award
  • Clio Client-Centered Certification

Recent Blog Posts

Kelly Sullivan Joins The Strong Firm P.C. As Senior Counsel

The Strong Firm P.C. is excited to announce the addition of Kelly Sullivan to its team of experienced attorneys. Kelly adds exceptional strength to the firm’s established practice areas based on her wealth of experience in the areas of Litigation, Labor and Employment Law, Business Law and Governmental Law, Zoning
Read More
Kelly Sullivan Joins The Strong Firm P.C. As Senior Counsel

The Future of Non-Compete Agreements: Executive Order on Promoting Competition in the American Agreement

In July 2021, President Biden signed an Executive Order aiming to limit the use of restrictive covenants in employment relationships. Opening with the premise that “a fair, open, and competitive marketplace has long been a cornerstone of the American economy, while excessive market concentration threatens basic economic liberties, democratic accountability,
Read More
The Future of Non-Compete Agreements: Executive Order on Promoting Competition in the American Agreement

Estate Planning: A Sophisticated Plan for Complexities

More sophisticated estate planning may be appropriate for people that: have sufficient net worth to consider tax planning; own assets in more than one state or jurisdiction; highly prize privacy; have blended families, and/or have a history of family discord (“Complicating Factors”). In 2022, the net amount a person can have
Read More
Estate Planning: A Sophisticated Plan for Complexities

Estate Planning: A Plan for Everyone

A common misconception is that estate planning is for the wealthy, with an abundance of assets, including retirement plans, life insurance and annuities. However, the truth is that everyone over the age of 18, regardless of wealth, socioeconomic class or marital status should have a basic estate plan designed for
Read More
Estate Planning: A Plan for Everyone
  • Video Vault


    Watch videos done by our legal team to gain a better understanding of your legal needs. Our lawyers give video insight into areas such as Real Estate, Business Law, Mergers & Acquisitions and much more.
Contact us

Quick Contact Form