The Dean Law Firm Blog

Probate Myth #1: My spouse died, but I don’t have to go through probate to transfer the house or car because it’s owned in both of our names, so it all automatically passed to me.

This is the most common probate myth, and it possibly the most damaging one. In Texas, property purchased between two people (such as a husband and wife) does not transfer automatically to the surviving owner after death of an owner unless the deed also includes language that the property was purchased with rights of survivorship. This is very rare when buying a house, because most title companies will issue title into the husband and wife’s name as tenants in common, without mention of survivorship rights.

What does this mean? Let’s say that Husband (H) and Wife (W) bought a house together during marriage. As Husband and Wife, H and W each own a one-half community property interest in the house. H died 10 years ago, and now an aging W needs to move to a senior living facility. Child tries to sell the house to pay for W’s care, but during the final days of closing, the title company refuses to issue title and stops the sale of the house. Why? Because the house is still half owned by H. W cannot sign on H’s behalf because she is not the appointed representative of H’s estate, and there was no probate to transfer H’s interest in the house to W. Even if H had a Will, a Will by itself does not transfer title. It must be taken to Court and pass through the probate administration process.

Now W and Child are forced to probate H’s estate 10 years after H’s death, and the probate is more difficult because it is beyond the statute of limitations. In Texas, you only have 4 years after someone dies to probate their estate. After 4 years, you can still initiate a probate, but it becomes much more costly and difficult to do so. Now the sale of the house is stalled for months, W cannot move into the senior care facility, or Child is paying for both the probate and W’s care out of their own pocket. This scenario can also apply to bank accounts, vehicles, or other accounts that H owned that were not properly transferred to W.

Probate Myth #2: I can do everything online! Since I can sign real estate documents using DocuSign, I can also download an online Will and sign my name using software on my computer.

In this increasingly digital society, many people are downloading online Will templates and signing them, believing that these templates are valid Wills. However, signing an online Will is like playing poker with a blindfold on—you won’t know if you’ve bet correctly until it’s too late. There are many ways that an online Will can be invalid, including that the Will does not include necessary state-specific provisions, it was signed incorrectly, or signing procedures were not followed.

Another mistake is due to the rise of online signing software like DocuSign and DocVerify. People believe that they can sign their Wills using this software, or just type their name on a Will using a computer. However, a Will is not effective unless it is in a physical form (printed out) and signed with a “wet ink” signature or mark. A typed or digital signature will make your Will invalid, and an invalid Will is treated like you never created a Will in the first place. You cost yourself, your Estate, and your family members time and money by not creating a proper Will, and your property will likely not pass to the persons that you intended it to go to in the first place. There are other ways that a Will may be invalid, so you should speak with an attorney about creating a legal Will if you have not yet written a Will, or have created an online Will.

Probate Myth #3: If I give verbal instructions to my family members about how I want certain items to be distributed, or I make a video Will, then my family has to follow my verbal instructions.

While your family members may honor your wishes spoken on a deathbed, or written on a piece or paper, or recorded on a video camera, it is truly based on the honor system. Your family is only bound to follow what is written in your Will, or Texas heirship law if you do not have a Will. Therefore, those promises may mean nothing in the future and only lead to hurt feelings from other family members who believe they were jilted out of a gift. Also, making gifts not provided for in a Will can also have gift tax consequences for the giver if they were legally entitled to the property under Will or heirship laws. If you want to make a specific gift, make sure to include this gift in your written Will.

If you would like to create a Will or set up an estate plan, or if a loved one has recently passed away and you need to transfer property, you should consult with an experienced estate planning and probate attorney. The Dean Law Firm is available in the office, and virtually by Zoom Conference software, Skype, FaceTime, and by telephone conference. We offer complimentary Estate Planning and Probate consultations. We are experienced in navigating these probate “myths” and are happy to guide you.