Probate is the process of recognizing a person’s death and winding up their estate. The process can be simple or complicated, depending on the size of the estate and its complexity. However, many people who are not lawyers can quickly become overwhelmed by the process and need professional help. Below is a general summary of the Texas probate process.
Identify the Estate
A person’s estate is made up of everything they owned at the time they died. This can include:
- Real estate
- Personal property, such as vehicles, boats, art, jewelry, books, etc.
- Retirement accounts
- Life insurance policies
- Investment securities like stocks and bonds
Texas probate law requires that all estate assets are gathered and that the deceased person’s remaining debts get paid out of those assets. Only after all debts have been paid can the estate’s assets be distributed according to a will or, if there is no will, according to Texas intestate succession laws.
Some estate assets do not pass through the probate process. For example, any life insurance policy or retirement account with a named beneficiary will pass to the beneficiary outside probate. The beneficiary should contact the company which issued the policy to discuss what paperwork they should fill out.
Also, any property held in joint tenancy with right of survivorship or community property with right of survivorship does not pass through probate, either. Instead, the deceased person’s interest in the property vanishes at death, leaving the other joint owner the sole owner.
If the deceased created a trust, then trust assets are not part of the estate, either. The trustee named in the trust will distribute assets to named beneficiaries.
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Starting the Probate Process—Dying with a Will in Texas
Probating a will in Texas starts with someone filing an application with the probate court. Texas probate law requires that the application contain basic information, including the date of death, the deceased’s address, and the identities of heirs. You also submit a copy of the will to the court. The county clerk will post a notice at the courthouse informing the public that someone has filed an application for probate. After a two week wait, you can have a hearing before the probate judge.
At the hearing, the judge will determine whether the person named executor in the will is qualified to serve. This person is responsible for gathering all estate assets, safeguarding property, paying debts, and finally distributing assets. If the deceased did not have a will, then the judge will need to appoint someone to serve as the executor. Most probate courts require that executors have an attorney representing them because an executor owes a duty to all beneficiaries and heirs. Even if this is not a court requirement, it is an excellent idea.
The probate judge must also determine the validity of the will. Texas probate law requires that wills meet certain formalities, and the judge will deny a will if it is deficient. If the judge admits the will into probate, then the executor will be issued Letters Testamentary, which the executor needs when winding up the deceased’s financial matters.
The executor needs to identify all estate property, which can be time consuming. The executor will need to go through their papers and identify all financial accounts and identify whether someone owed the deceased money. The executor must also safeguard all property so that it does not become damaged or that no one steals it.
After the executor has gathered all property, he or she must file an inventory of all assets with the probate court. The executor has 90 days from the date of appointment to provide this inventory. Some assets might also need to be appraised, such as jewelry, property, etc. A good rule of thumb is that anything you would not sell in a garage sale should be professionally appraised.
Most people have some bills, no matter how small—utility bills, credit cards, cell phone charges, etc. These must be paid off with assets from the estate. However, sometimes, the deceased owes considerable sums to people. Because creditors are entitled to payment, you must notify them of the death. Your lawyer will file a Notice to Creditors, which will identify the executor and provide their lawyer’s address. It should also provide a deadline to creditors for filing a claim with the estate for payment. This notice is published in a local newspaper.
Not all creditors are treated equally. Instead, Texas probate law classifies them into different classes. For example, the legal fees for any attorney the executor retains will be paid first. This ensures that executors have competent legal representation during the probate process.
If the estate has sufficient cash, then paying creditors is generally easy. However, if the bills are large and there is not enough cash, then the executor will need to sell estate assets to generate the funds necessary to pay bills. Selling assets is tricky, because a beneficiary might be waiting to inherit the item you sell. A lawyer is definitely helpful at determining which assets to sell while treating all beneficiaries fairly.
If the deceased had a will, then most executors will be appointed as an Independent Executor. This means that they do not need the court’s permission before taking certain steps, such as paying creditors or selling estate assets. They also do not need to post a surety bond. An independent administration should be easier and less expensive.
Conversely, when someone dies without a will then the Texas probate process is “dependent,” meaning supervised by the court. The executor will need permission before taking any step in the probate process. Helpfully, Texas probate law section 145 allows the court to create an independent administration if all heirs agree.
Disputes can crop up in the probate process. For example, there might be a dispute about who should serve as executor. Family members might think the person named is not fit to serve, or the deceased might not have left a will so several people fight over who can serve in this capacity.
Sometimes, disputes arise over whether a will is authentic or whether the will represents the deceased person’s wishes. Someone might challenge the will for a variety of reasons, such as the deceased lacked the mental capacity to create the will or they were defrauded when drafting the will. A judge will need to hear testimony and review evidence. If a will is set aside, then a prior will might take effect, or the estate might need to be distributed according to the state’s intestate succession laws.
The final step in the probate process if for the executor to distribute the assets according to the will. The executor must coordinate with the beneficiaries to determine how they will take the assets.
In some situations, an executor will sell assets so that the beneficiaries receive money. The executor will need to coordinate these sales. Depending on the assets sold, the estate might owe state and federal taxes, which the executor must pay.
Speak with us
This is only a general overview of the probate process. Probating a will can be a complicated process, and executors must discharge their duties with a high degree of accuracy and fairness. Most executors find they need help when probating a will in Texas. Please contact us today. To schedule your consultation, please call 713-812-1409
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.