How to probate a will in Texas
After the death of a loved one, their estate must be settled. The process involves creating an inventory of their belongings, a list of their debts and determining who the decedent wished to have certain assets. Legally, even when a decedent has a will which spells out their desires, it is necessary to go through the probate process. There are very few instances where probate is not required; however, for most people, the distribution of assets that are not jointly held will involve a probate process.
What Does Probate Mean?
Probate is a legal process that involves filing the decedents will with the court, having the court validate the will and approving an administrator of the estate. In the event the decedent died without a will (intestate), the court would still be involved in the process. In effect, the court system is acknowledging the death of a person and providing the legal right for another party to handle the affairs of that person.
Texas: Four Types of Probate
There are four different categories of probate for an estate. Generally speaking, you should speak with an attorney who is familiar with the Texas probate process before making a decision as to how to proceed. The four types are:
- Small Estate Affidavit – this is a non-probate process which is allowed only if the decedent owned less than $50,000 in assets and no will at the time of their death. In spite of the fact there is no formal probate, a judge must approve the affidavit and it must meet certain legal requirements.
- Muniment of Title – in this instance, the decedent would have had a will but owes debt associated with real estate holdings. The court will validate the will and ensure there is no claim against the estate for Medicaid benefits that may be reclaimed. The court would make a determination the estate does not require administration and log the will as evidence of the assets of the decedent.
- Independent Administration – once the court has determined who is appointed as the estate administrator (executor), per the will, this process confirms the person and requires no bond. The administrator is then responsible for the collection, valuation and distribution of assets. There is no oversight; a final report is filed with the court after all debts are paid, assets distributed and final tax returns filed.
- Dependent Administration – when a decedent has left no will, the court will appoint an administrator. In this instance, the executor is not allowed to distribute assets or pay any bills without court approval. In nearly all cases, the executor will need to post bond. The court maintains complete oversight of all activities.
The Probate Process: Time is of the Essence
Once the court is notified of a death, there is a two-week period where the Clerk will post a notice for creditors and heirs. Once this occurs, the judge will set a hearing to affirm the probate and approve the estate executor. The executor must then identify all beneficiaries, notify creditors and resolve disputes between heirs. Once all expenses are paid and any disputes regarding the estate are settled, the assets are distributed and the executor is responsible for filing the final tax return.
Jointly Held Property and Certain Other Assets
Some property is not subject to probate including jointly held property, life insurance policies or retirement accounts that have named beneficiaries and any property that is community property which would automatically transfer to a spouse. In the event property is held jointly and both spouses are deceased, the property would then pass to the estate and be distributed in accordance with the will.
Keep in mind, the process is more complex when there is no will because the administrator will have to distribute assets in accordance with the orders of the court. However, in these cases, the beneficiaries must be notified of the fact there was no will and the court may require they provide proof they are a beneficiary of the decedent.
While this process may sound relatively straight-forward, there are time frames associated with notifications, certain meetings that must be set with beneficiaries and time frames for paying final expenses. Generally, the process goes smoothly but in some cases, a beneficiary may dispute the contents of a will or dispute its validity. In these cases, an estate administrator may need assistance from a skilled probate attorney in Texas.
Contact an Experienced Probate Attorney
Forbes & Forbes Law provides probate assistance to residents in both New Mexico and in Texas. We understand sometimes the process isn’t as easy as some people think and we’re here to help. Contact us today and we’ll help you navigate the Texas probate system. We understand the court system and we’re committed to helping you through this stressful time.