Does a Will Have to be Probated in Texas?
The State of Texas requires a deceased person’s assets to be distributed according to a specific procedure, known as the probate process. For this reason, when a loved one dies and leaves behind the personal property and/or real property, that person’s estate must go through the Probate Process in order to pass the title to the property. If the deceased person leaves behind a Will and owns property at the time of death, the Will must typically be probated before the estate assets and decedent’s property can be distributed to the surviving beneficiaries.
When Probate is not Necessary
Some assets that can be easily transferred from a person’s estate to family members and loved ones without the probate process include:
- Community property that entails the right of survivorship
- Joint tenancy property or real estate that entails a right of survivorship
- Bank accounts that are payable-on-death
- Life insurance policies that name beneficiaries
- Any survivor benefits that result from an annuity
What is Probate?
Probate of a Will is a legal procedure by which a deceased person’s Last Will and Testament are offered to the Court for the Court to open an Estate and for the Court to appoint an executor or administrator, as the case may be. The Court will decide, at the time of the hearing, whether the Estate can be processed independently of the Court’s scrutiny or Dependent on the Court overseeing the entire process. The Court will then instruct the executor or administrator to work with the lawyer to identify the assets and the liabilities and ultimately distribute the estate property to the beneficiaries named in the Will. Most estates in Texas must undergo probate administration proceedings.
However, some estates may be exempt from probate procedures, depending on how the assets in question are owned. In some cases, estates may also qualify for simplified probate proceedings. In general, it is best to consult an attorney for legal advice if you aren’t sure what aspects of Texas’ probate code are required to be abided by for a given will.
In 2018, there were 105, 697 probate cases filed, comprising about 9% of the total Texas civil caseload.
The probate process usually begins when someone submits the decedent’s original will to the court. At this time, the court will seek to validate the will. Once the original will has been deemed a valid will, the probate court will appoint someone to administer the estate and oversee the probate process. This person is known as an “independent executor.”
In many cases, the executor will be named in the original will. After an administrator has been appointed, he or she must inform all of the decedent’s creditors of the individual’s death by providing proof of a death certificate. He or she will then pay off all valid claims and distribute the remaining real property in accordance with the will.
What is a Muniment of Title?
This process is considered to be a relatively inexpensive way to transfer and divide estate assets when a valid will is available. The muniment of title process may be utilized within Texas probate proceedings when:
- A valid will is present
- The decedent has no unpaid debts, except involving the homestead or other exempt property
- There is no Medicaid claim associated with the estate associated with recovery of benefits
Muniment of Title is a legal document that shows evidence of ownership of an asset.
Heirs to an estate may file for the probate of a Will by way of Muniment of Title. In this regard, the Court is asked to recognize that the properties in the estate pass to the beneficiaries under the Will according to its terms and requests the property titles be transferred to them.
This legal mechanism is unique to Wills in Texas.
The muniment of Title offers a streamlined process that bypasses the typical administration of a Will. By presenting the Will before the probate court, the parties are basically asking the judge to recognize them as owners of the properties designated to them and that no other court action is necessary on the estate. In this case, the Will acts like a deed proving ownership over a particular property.
In Texas, probating a Will as a Muniment of Title affords an easy and less expensive method of settling the decedent’s estate.
Do I Need an Attorney?
Most Texas courts require a will’s executor to be represented by an attorney when completing the probate process.
How Long Does Probate Take?
Most probate cases are three to six months in length, but if disputes arise the process may take longer. In most cases, a will can be admitted into probate court in as little as 30-45 days.
Keep in mind that, if you are involved in the probate of an estate, hiring an attorney may be mandatory. Probate laws in Texas can be confusing, but an attorney can explain these issues and help you make the right choices throughout the process.
Do I Have to Probate a Will in Texas?
In Texas, in order to pass title to the property a Will must be probated after a loved one’s passing.
If you have been named an executor in a loved one’s will, or if you are otherwise involved in a probate process in Texas, please contact Forbes & Forbes for a free consultation so we can go over your loved one’s valid will in order to determine your best course for probating the estate assets to the appropriate family members.