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Must I probate a will when there are no assets but a lot of debt?

Houston, TX |

Dad unexpectedly died a few months ago. His will left everything to Mom. She has lived in a nursing home on Medicaid for 10 yrs and is under hospice care for Alzheimer's. Dad's will lists no assets because he owned nothing except a few furnishings in his tiny apartment. He had no life insurance. Since a 2002 bankruptcy, Dad managed to get himself back into great debt; some credit card, an unsecured loan, and he owed a balance after resale on a car we turned back to the dealer because he could no longer drive or pay for it. Do we have to probate his will just to prove he didn't leave any means to pay his creditors, who keep sending bills to him and/or his "estate"?

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Attorney answers 3


If you want to have proof to provide creditors that there is no estate to collect against then it may be necessary to go through probate. Unfortunately, administering an insolvent estate can cost the same or even more than an estate with assets because of all the work involved with the creditors (especially if there are a lot of them).


Generally the only state law requirement is that if you have possession of an original Will that you file it with the local probate court (file it versus seeking to admit it to probate). In KS you can drop the Will off with the Court, thereby complying with state law, and pay no fee. I would not suggest you seek to have the Will admitted to probate with teh appointment of an executor - why work for free when there is absolutely no upside for any heirs of the estate? There is none. We see many bankrupt estates that simply do not get filed by the surviving heirs as there is no reason to do so. Good luck.

Mr. Post is licensed to practice law in KS and MO. The response herein is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply unsuitable. Mr. Post strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.


This posting is for educational purposes only and does not create an attorney-client relationship between us.

From what you've described, dad's estate was insolvent -- meaning that there are more debts than there are assets. As such, probating the will would only require the named executor the job of sorting out all of the debts -- not a very attractive option.

Section 75 of the Texas Probate Code requires that one in the possession of a will at the time of the testator's or testatrix's death "will deliver it to the clerk of the court which has jurisdiction of the estate."

So to comply with this law, I would suggest you do as it requires -- deliver it to the county clerk, but there is no reason you will have to probate the will or formally administer it.

Best of luck,

Randall Perrier