Q: Does a handwritten will in TX allow assets to go to the spouse without being probated if that is what it stipulates?
The spouse is selling the house but title is saying that the deceased’s 2 adult children have to get half the proceeds from the sale since the will wasn’t probated unless they sign off not receive any of the proceeds. He had his body donated to science so the spouse said the probated will wasn’t necessary. The deceased wanted everything to go to his current wife at time of death and didn’t want anything to go to his two children from another married because when he got divorced, the children didn’t want to have anything to do with him ever again. The wife still has to pay off the mortgage and solar panels on the house, so it won’t leave her much money to live on as it is. The escrow officer admitted that she has never come across this before.
A:
Unless and until a Will is probated, it is not effective to transfer assets from a deceased person to his/her heirs. It doesn't matter if the Will is a handwritten (in legal terminology, that is called a "holographic" Will) or typewritten/word processed with all the formalities. The probate process is what gives a Will legal force and effect once a person has died.
Fortunately, the probate process is inexpensive and quick in Texas. You usually must file a Will for probate in Texas within four years of the death of the person who made the Will. There are certain exceptions. After that, you may still be able to probate as Will as a muniment of title.
In the absence of a valid Will, a portion of deceased spouse's estate will pass to his children if they are not also children of his surviving spouse. That means, his two children from a previous marriage are entitled to a share unless the handwritten Will is timely probated and determined to be valid by the probate court.
Gratia "Grace" P. Schoemakers agrees with this answer
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