Must a Will need to be probated and, if so, how do you find out if it was?

Before my husband died in 2005 he was in his mother’s Will as an equal heir with his brother. His mother developed dementia about 1 1/2 years after my husband’s death. His mother just died and neither myself nor my son have heard a word about the Will. His brother was the executor. Did he have to probate the Will? How can we find out?

Asked on February 28, 2013 under Estate Planning, Texas


Catherine Blackburn / Blackburn Law Firm

Answered 7 years ago | Contributor

Your brother in law does not have to probate your mother in law's will if your mother in law left no assets to be distributed to her heirs.  If she left assets in her name, then he will have to open an estate (probate the will).

You should call the probate court in the county where your mother in law lived to find out if a will has been admitted to probate.  Often, you can check this online as well.

Several things could have happened in the years between your husband's death and your mother in law's death.  She could have changed her will.  She could have used her assets for her care.  The will could have been lost or destroyed.

You and your son would be well served to speak with your brother in law about this.  It would give you peace of mind.  If this is not possible or practical, contact a probate attorney in the county where your mother in law died to advise you.

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