When a loved one passes, it's a difficult time for you and your family. As you mourn their death, you may find it challenging to undertake the deceased estate's management. Several legal processes take place to ensure the legal distribution of property and assets. These processes, while complex and lengthy, are essential to you and other beneficiaries.
Several procedures occur to ensure the legality and validity of the decedent's will and the identification of the deceased property. It's also essential to pay debts and taxes owed and distribute a decedent's estate among legal beneficiaries. This process is known as probate, and it happens when a person dies and leaves the property.
The probate process varies state by state and may also change depending on the existence of a will. Usually, when a person passes, the executor named in the will, or the administrator appointed by a judge files papers in a Texas probate court. The executor has to find and secure the decedent's property, record all taxes and debts to pay them off, and notify all family and creditors of the decedent's official passing.
However, not all inheritance processes go through probate. The laws allow for the property to go through simplified probate and other processes. If you're unfamiliar with the probate procedures in Texas, read on to understand.
What Is Probate in the State of Texas?
When an asset-holder passes and leaves property behind, several rules affect the distribution of the estate. Probate takes over when the property to be inherited is not under a trust, joint ownership with right of survivorship, or a direct payment to the heirs. Any property outside these guards usually goes through probate administration.
The Texas probate process allows the courts to intervene to confirm a person's death, identify their property and assets, discharge debts, and ensure proper distribution of inheritance to the beneficiaries. If you're about to go through the probate process, you may interact with several terms.
- Decedent: The person that has passed, and the estate owner.
- Will: The Last Will and Testament is the legal document that details the decedent's wishes on the distribution of their assets.
- Beneficiary: A person named in the will as a recipient of the decedent's assets, or one identified by the court if there is no will.
- Executor: A person named in the will to oversee the winding up of an estate, by cataloging the assets, paying off debts and taxes, notifying heirs and creditors, filing probate paperwork, and distributing assets among beneficiaries.
- Administrator: A person appointed by a probate court to oversee the winding up of a decedent's estate if there was no valid will and executor.
What Are the Different Ways to Probate a Will in Texas?
Different probate processes take place if the decedent has a will or no will. The process may also vary depending on the size of the estate or if there are disputes.
- Independent Administration: This is the process that first jumps to mind when probate is explained. It is the usual route when a deceased person has a valid will and has named an executor for their assets. Once the executor has the court's go-ahead to wind up the deceased estate, they have control over property identification, payment of debts and taxes, and distribution of assets. This process does not require a Texas court oversight or the payment of a bond. However, after winding up, the executor files a final report with the courts.
- Dependent Administration: You're probably wondering what happens when a loved one dies and has no will. In instances where a decedent has no valid will, the court appoints an administrator to wind up the decedent's estate. The administrator may be one of the decedent's primary heirs. However, the administrator does not have free will as a named executor and has to answer the courts in each step. This process also requires the payment of a bond.
- Muniment of Title: A reasonable and straightforward way to probate a will and Texas is through Muniment of Title. In this process, a valid will exists, the decedent's estate has no debts, but the court does not appoint an administrator or executor. Instead, the court admits the will into probate as evidence and issues an order used to transfer the titles of property to the decedent's heirs listed in the will.
- Small Estate Affidavit: When a decedent's assets are collectively worth less than $75,000 (excluding the homestead property and exempted assets), and there's no will, the heirs can file a small estate affidavit to allow the distribution of property without the formal probate process.
What Is Independent Administration in Texas?
The independent administration process in Texas begins when a person files an application with a probate court in Texas. The application includes details such as the decedent's name, the date of passing, the decedent's address, the names of their beneficiaries, and a copy of the decedent's will. Once the application is complete, the court clerk announces the beginning of the probate process by posting a public notice in the courthouse.
After two weeks, the person who applies can appear before a judge in a Texas probate court. Usually, the decedent names a person in the will to serve as the executor upon their passing. The executor can then start the probate process by making the application in court.
During the hearing, the judge determines if the named executor is fit for their role. If they are, they take up the duties of executing the decedent's estate. This includes identifying the decedent's property keeping it safe, paying all debts, and sharing the estate among the heirs. In most cases, executors have a lawyer to represent them in probate court. This is because an executor has a duty to the decedent and several heirs. While this is not mandatory, it helps with the probate process.
Any mortgage payments, Medicaid claims, and household expenses are paid from the estate. However, the executor or administrator notifies the creditors of the decedent's passing before paying any debts. The creditors can then file claims against the estate if there are unresolved debts.
During the court proceedings, the judge also takes a look at the will to determine its validity. If the last will fails to meet the requirements for validity, the judge can dismiss it. However, when a will passes, the court issues Letters Testamentary and Grant of Probate to the executor to proceed with winding up the decedent's estate.
Lastly, if any family members contest the will, the probate court must listen to their claims before the estate is wound up. Texas allows you two years after the grant of probate to protest a will. For cases where there is no will, you can contest after the issue of Letters of Administration.
What Is the Timeline for Probating a Will in Texas?
In Texas, an executor has four years from the decedent's death to file for probate. When this period lapses, the court assumes that the deceased passed intestate, that is, not having made a will before death. The rules of intestate succession in Texas then apply.
However, the Muniment of Title allows an exception. You can apply for probate after four years when using this form of probate in Texas. Generally, the probate process can last for months or years, depending on the estate's size and disputes.
What Property Is Included in the Probate Process in Texas?
A decedent's estate includes several items such as:
- The cash they had upon death
- Real estate property
- Property such as vehicles, boats, jewelry, and books
Assets such as life insurance policies and retirement accounts with a named beneficiary do not go through probate. The named beneficiary contacts the institution directly to organize the transfer. Also, property under a trust is distributed by a trustee, while property in joint tenancy with right of survivorship goes to the other owner.
Can I Avoid Probate in Texas?
Probate court proceedings can be long and tiring. Finding ways to reduce the length, cost, and disputes in the process can help you carry on quickly. You can avoid the probate process by:
- Creating a living trust: When you create a trust, you catalog your assets, appoint a living trustee (a person who takes over your property after your passing), and transfer all ownership of your property to yourself as the trustee. You should also set the terms, such that, after your passing, your trustee distributes the estate among beneficiaries according to your wishes.
- Using joint ownership: Owning property jointly with the right of survivorship with someone, such as a spouse, allows the transfer of property to them after your passing.
- Payable-on-death (POD): You can register your bank accounts for POD to allow your beneficiary to gain ownership after your passing.
Do I Need a Probate Lawyer In Texas?
Probate is a common way to distribute a decedent's estate and settle any debts and bills. However, it can be complicated, especially to anyone new to the ways of the probate courts. Hiring a probate attorney in Texas helps you understand the probate process and identify if you need to go to probate court.
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