Survivor acting as executor should hire a probate lawyer
Q: My brother and I are both in our 70s, divorced, have no children. We live independently of each other. We will be renting a safe deposit box in which to keep the original copies of our wills. We plan to give copies of the wills to appropriate persons. How is the will probated when we die?
A: When one of you dies, the other will have access to the safe deposit box to retrieve the deceased person’s will. Presumably, you named each other to serve as executor, so the one of you who outlives the other will need to hire an attorney to probate the will with the court.
After the second of you dies, the person designated to serve as executor will need to do the same thing.
You both should consider designating another person or several persons to have access to the box. That way, if you both die together or become incapacitated, the other person (or persons) will be able to get into the box to access the wills and any other things that are stored there. Of course, you need to designate people you both trust completely.
Q: My husband and I both have wills. Would probate be necessary in the event of one of our deaths? He has two sons, but everything is left to me except for a few things that are designated to them. I want to avoid probate.
A: If you own property that passes under your will, then probate will be required.
To avoid probate, you would need to set up a revocable trust or sign a transfer on death deed. What you would want to do depends on the assets you both own.
An attorney can explain your options to you.
Q: My wife died a few months ago. She had a will leaving all of her property to me. All of our investments passed directly to me, except for our home. What is the easiest way to transfer that property to my name?
A: Probate will definitely transfer title to you. That is the surest way to proceed, but it is also the most expensive.
Some attorneys might advise that all you need to do is file an Affidavit of Heirship for your wife’s estate, perhaps with a copy of her will attached as an exhibit.
Nothing should cause you any problems until you try to sell the house, refinance your mortgage (if you have one), or obtain a home equity loan. You might die still owning the house, and it will then be your beneficiaries’ problem to address.
Completing the full probate will result in matters proceeding smoothly. It is uncertain whether the Affidavit of Heirship would work as effectively.
The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances. Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to stateyourcase @lipmanpc.com.