Does a Will Have to Go Through Probate?

Transcript of Interview: “Does a Will Have to Go Through Probate? How the Process Works”

**Mike Barnes:** I think a lot of us have found out the hard way that once someone passes away and the will, it’s time to talk about that. It has to go to probate. What is that? It’s like a mystery.

**Kim Barnes:** Today we’re bringing in Jeff Barnett and Keith Leuty of Barnett & Leuty Law Firm to talk about this because I think it is a really confusing and sort of unknown process. Thanks for being with us today.

**Jeff Barnett:** Yeah, thank you for having us.

**Kim Barnes:** Let’s start with what exactly does probate mean and what you know, what’s the process?

**Keith Leuty:** Sure, the word probate essentially means to prove something and what we’re proving to a court, a probate court judge, is that person’s last will and testament is—it’s valid. No reason to question it. It complies with state law, and it accurately reflects the true wishes of the decedent, the person who away.

**Mike Barnes:** I think there’s some people out there who think that, well, if I have a will, I don’t have to go to probate, but that’s not the case. Correct.

**Jeff Barnett:** Sometimes that there that misconception out there, that, that if, if I have a will, I don’t need to go to probate, or even, sometimes, I, if the house is in both names, I don’t to go to probate. It’s just going automatically be like, no, not. So that’s definitely not the case that, you know, that just because you have a will, you don’t have to go probate. Sometimes it, but not because you have a will. Sometimes there are situations that, you know, that, that lend themselves to, that, that mean that you don’t to go probate, but yeah, when have a will, there are probate assets, there are assets at the end of life that need a court process, a probate process, to change the title of those assets into the names of the beneficiaries, then yes, you have go probate, but and true whether you’re whether you have a a will or whether

**Mike Barnes:** Good description with the assets. Gotcha.

**Kim Barnes:** Yes, and you mentioned that when you don’t have a will, that likely makes things a lot more complicated. So we’re not going to even try to address that in this interview. Let’s do—we’re going to stick with probate process when you have a will. How long would people expect for it to take?

**Keith Leuty:** Well, upon where you are, what state, what county. We can certainly speak to the central texas area. In our part of country, probate, usually we tell our clients is about 3 or 4 months, start to finish. Sometimes, court dockets are a little jammed up. We do hear stories from other states, California, in particular, apparently it can take substantially longer to through the probate court. But from start finish, three four months is pretty common from what what we hear around central Texas,

**Mike Barnes:** Which isn’t too bad. But when you have assets, when you have bills, when you have so much things you have to get done and you want to do it now, is there any way to speed up the process?

**Jeff Barnett:** Sure. To, to some degree, you just may be staying in in touch your attorney. You’re taking the earliest possible court date, things like that, certainly can, get, obviously getting in see the attorney with the will and, and, the death certificate as soon after death as possible, that process. But, but there are, when you, when you file a will for probate, there’s a mandatory 10 posting period. And then, have to get on court’s docket.

**Jeff Barnett:** And, depending upon type of docket that you’re in and depending upon the circumstances, that can take anywhere from, a week 2 up to couple of months, get on docket, but depending upon county or the jurisdiction you’re, but, it’s, not, it’s still not a terribly long time, like it is in some places, like some other states. Okay.

**Kim Barnes:** Do you have to have an attorney to go through the probate process?

**Jeff Barnett:** So generally you’re supposed to have an attorney. And so the situation is that any the big counties in Texas, and, everything here in the immediate, central Texas area—Travis, Williamson, Bastrop, Bell —they are going to make you get an attorney. Some of the more rural counties, I have heard stories where, somebody, was allowed to, not get an attorney, by local judge. That is something that, that judge, theoretically can do. But an estate is really a distinctentity from the person who died and also person who’s trying to, to, be appointed as the executor, those the person died one person, the person who’s trying to be appointed as the executor one person and estate is third entity. And that is when you’re, when you go to court, you can only represent yourself in court you’re not attorney, if you’re, but only you’re attorney, you represent, I’m sorry, represent somebody else or another entity. And the basis for that rule of needing to, have an an attorney.

**Kim Barnes:** So in some ways, the attorney is representing the estate or or the will.

**Jeff Barnett:** Yes. Exactly.

**Mike Barnes:** That makes sense. Those of us who are not in the legal profession here about trusts and we’ve done an interview about trust to just try to understand it more, but you hear about trust and that you don’t have to go through probate if you have a trust. Is that true? And if so, explain that to us.

**Keith Leuty:** The official answer would be maybe because it depends. It depends upon what you’ve done the trust. We’ve run into who come into our and say, hey, many years ago, had an attorney set trust and we them what’s in the trust and they look at us and like. You talking about? Well, a trust like a legal bucket and whatever you put that legal bucket will never to go through probate. That’s why people set up So, if you’ve put everything substance into trust, then no, you, there’s a very chance. You won’t need to go through probate. But if you didn’t put everything in trust, you, might wind up having both. Both.

**Jeff Barnett:** yeah,

**Mike Barnes:** But anything that’s in that trust you still don’t have to worry about even though you’re going through probate for other things. If it’s in that trust, you don’t worry about it at all, correct?

**Jeff Barnett:** Correct.

**Kim Barnes:** Gotcha. So what happens with, say there’s outstanding bills. There’s a house payment that still needs to be paid. There’s funeral arrangements or expenses that that need to be paid on behalf of the person passed away while it’s in the probate process. Does somebody have to sort of front the money and they get paid back later? Or how does that work?

**Jeff Barnett:** So officially, creditors basically have stay bay, and whether that’s, mortgage company or a credit card company whatever, the estate is responsible for expenses. And, when you, when somebody died, somebody, whether the executor or another family member, should contact those creditors and say, hey, person died, we need some time probate and those creditors, are required, to, to, forbear, to, stay away for a little bit and give people time. But, that can be little bit of a, messy process, as well. And so if we, we tell people that while have no legal obligation to front anything for, the estate. If the money’s available, either a credit card or, somebody has enough money in the bank or whatever, and they’d like to go ahead, as the, the incoming executor, or as family go and front some expenses, they certainly can be reimbursed right the top before any other distributions are made, if they want to go ahead and front those expenses, but they are not required to.

**Keith Leuty:** And if I may add one thing, just to make sure clear to people, having authority act is very important. Many times, somebody be a power attorney for their loved one and, the power of attorney, course, expires when person dies, you can’t into the bank after person dies and use power attorney to, to, move any financial, arrangements that you need to do. And if you are named be the executor in the will, essentially, I compare to having the executors like a light bulb, that’s in place and ready go, but what you have to go front the judge and be approved and judge flips the switch on light bulb, giving the executor power. So, even you’re named in a will, you’re not officially, you’re the 1st candidate to be the executor, but you have authority to act until the judge says so.

**Mike Barnes:** You can’t immediately the day after death say, well, I’m the executor. I’m going to start doing this and this. You have to wait on the judge, correct? And by the same token, let’s say, Dad passes away and people find out about it. And a week later, somebody comes to the house and says, I’ll give you a million dollars for Dad’s house today, but you have to sell it today. If it’s in probate, you can’t do that, correct? And unless it’s in a trust or something like that.

**Jeff Barnett:** Yeah, so, if the will has not yet been probated and switch hasn’t been flipped to the executor power yet, then nobody can that house on the market sell it anybody unless it was transferred, by some automatic means like a transfer on death date or ladybird. If it’s the estate, the then, nobody has the authority sell that house transfer that house to anyone for any reason, until that switch is flipped then, the executor can deal and wheel and deal and, and, sell the house and whatever, and do what’s needed to do go ahead and administer the estate, including selling assets and turning cash and then then splitting the proceeds among the beneficiaries.

**Kim Barnes:** And that’s once that switch has been flipped by the judge at sort of of the beginning probate, right? So that means that they could have authority to act during the actual probate process to be able to make. Okay.

**Jeff Barnett:** Probate process is, you basically file the application probate and then there’s a 10 day waiting period, that you to for, and then you have to get on courts docket. And again, that may vary little bit by county, but then, when you’re on court stocket and you go in and you do prove up of the will, then, then once you have done that prove up, then you. Okay. You will be given by court letters, testamentary or letters of administration. And then you do the authority that is the official thing flips that switch and it gives you the full authority to on behalf the estate.

**Mike Barnes:** Got it. So even though the will hasn’t gone all the way through probate and assets have been given to family members or whatever, that executive can do things whether it’s sell a house or a car or a boat or whatever it may be for things pay bills. Yes,

**Kim Barnes:** okay

**Mike Barnes:** I think that’s great to know because I think a lot of people are confused worried about that process, right?

**Kim Barnes:** Do I not have access to any of those funds to pay for their bills for three months, six months, however long it takes? What happens in those cases where potentially the person who passes away with a will has more debts than they actually have assets that are part of the will. Do you still go through probate?

**Keith Leuty:** Well, again, it be number factors to determine whether or not it be beneficial to go through probate or not. But if somebody does go through probate, there’s an opportunity for any creditors to file claim against the estate to see that they be reimbursed. But if there’s no there, then there’s no assets there.

**Jeff Barnett:** Right. And, there’s usually not an incentive for, a family to enter will into probate if the estate is upside down that, estate more than, has. So, so usually you don’t initiate probate process, but a probate process can be initiated by a creditor. That’s something you know, that is, kind of outside scope or beyond scope of this shorter interview. That’s something can happen well. Even you choose as family, Hey, gonna, this is upside down, we’re not to go probate, you suddenly receive a, a notice the court saying, oh, this estate is going through probate and you’re going. What

**Kim Barnes:** As the family though, are you responsible for the debts of the debts of the person who passed away?

**Keith Leuty:** You are not. It is actually the obligation of the estate. Unless, you co signed on something or, there’s a lot possibilities how could be, but question come up a lot. They say, my loved one passed away and. I don’t want to go pay their debts and it’s like, well, not your debts, so don’t worry about it.

**Jeff Barnett:** The debts die with them to the extent they’re not enough probate assets to, to pay those debts.

**Mike Barnes:** Another good thing to know. Y’all, y’all gave us so much to know. Last thing to ask is other than getting a trust, is there anything we can do to help the process? To plan ahead to, okay. I know, my mom’s not going to last much longer because of Alzheimer’s. What do I need to do or even for debt? Whatever it is, thing that we can work in advance and plan in advance to help this process.

**Kim Barnes:** You mean like things like a ladybird deed or transfer on death or beneficiaries or those kind of things? Whatever they say. Yeah. Yeah.

**Jeff Barnett:** That’s exactly, that’s what I was, you the things that Kim just said are exactly what I just gonna say, basically. You’ve, you know, coming and, it’s, and you want to simplify yes, you go ahead and set if the person’s competent, you set have them set up, beneficiaries on bank accounts. You can do a lady bird deeds or transfer death deeds. Can, set up things to, to, to, pass. Separately from probate and depending upon situation and, and kind power attorney have, an agent under power attorney be able to do some those things to, to simplify and potentially prevent, having to go probate.

**Keith Leuty:** Be sure check with your banks, and your, anybody you have money invested with, just because you’ve named somebody to be beneficiary. There could be little hidden clause box checked on their computer that says we’ll release this money after through probate. And in our experience, if that is hidden in there, and, to ask question, you can simply request that they uncheck that box and change it. So,

**Kim Barnes:** okay, and obviously there’s a lot, there’s a lot more to this, and we could talk. Probably all afternoon.

**Mike Barnes:** Again, things are different in different states. Always check with the attorney in your state.

**Kim Barnes:** Right. But hopefully this helps. Explain lot of the terminology and help people have the right questions to ask.

**Mike Barnes:** Thanks so much for helping clear lots of things up. Jeff and Keith, we appreciate you both.

**Jeff Barnett:** You’re welcome. For having us.

**Mike Barnes:** Yeah. I think what we always learn, again, communicate not only with each other, not only with mom and dad, but talk to an attorney, talk to mom and dad’s attorney, talk to an attorney that you know, find out what needs to be done to kind of streamline the process, make it as easy as it can be for you and the family. The

**Kim Barnes:** More you have prepared and the more you understand, hopefully the simpler that process will be. Exactly.

**Mike Barnes:** Hey, if there’s any other topics you’d like us to discuss, please let us know. Parenting aging parents..

*This transcript is auto-generated. Please excuse any typos or mistakes.