Do i have to have an attorney to go to probate court

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Do i have to have an attorney to go to probate court

My Father died and I her son need to know if we have to probate his will and when it has to be done in Texas

Asked on May 26, 2019 under Estate Planning, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Most probate courts in Texas will require you to have an attorney...but to be sure of the rule in your county, call the county clerk and see whether the local judge(s) has imposed this rule.
To probate a Will, the statute of limitations is four years.  If there is only one heir named in the will (i.e. everything to your mom), then this will be a very simply process of filing the application, have the will accepted, and do a simple affidavit saying all the property has been distributed.  I have been able to finish this type of uncontested probates in under 90 days (just depending on the court's scheduling).  If you consult with a local attorney that says it's going to take a year to probate this Will, then go talk to another attorney.  
Because there is a will that leaves everything to your mom, she should probate the will to keep the chain of title clear.  If she does not probate the will in four years, then she forfeits the right to 'enforce' the will, and your dad's estate will be as though he did not have a will.  This means that to 'clear up the title', she (or another heir) will then have to file an heirship proceeding which is much more expensive than a regular uncontested probate.  She will still inherit from the estate because she is a spouse, but the estate will also have to be shared and divided among other heirs (as opposed to all to her as is set out in the original will).  Basically, more messess equal the need for more documents.
Additionally, without the probate, the title is not clear....which will hinder her ability to refinance or transfer the property later.  Right now, that may not seem like a big deal, but if your mom ever needs the funds, then it will hinder her access to a valuable resource.  


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