When someone passes away, their estate goes through a legal process known as probate. This process determines how the estate will be divided and distributed among the deceased's heirs. Here are five things you need to know about probate in Texas!
1. What is probate and why is it important
Probate is a legal process that determines how a deceased person's estate will be divided and distributed among their heirs. This process is important because it ensures that the deceased's wishes are carried out according to their will. If there is no will, the probate process will determine how the estate is divided based on Texas state law.
The probate process can be long and complicated, so it's important to have an experienced probate attorney on your side. The executor of the estate is responsible for handling the probate process. The executor is typically named in the deceased's will. But if there is no will or the named executor does not want to serve (or has passed away already), the beneficiaries can agree on one and ask the court to appoint that person. If the beneficiaries cannot agree, the court will appoint an executor.
2. How long does the probate process take
The length of the probate process depends on several factors, including the size and complexity of the estate. In general, the larger and more complex the estate, the longer the probate process will take. The average probate case takes about nine months to complete. But some cases can take years to resolve. In Texas, an independent executor can act as soon as they receive letters testamentary, which is usually about one to two months after the application is filed.
3. What are the costs of probate
The costs of probate vary depending on the size and complexity of the estate. Generally, the larger and more complex the estate, the higher the costs will be. Probate costs can include court fees, attorney's fees, and executor's fees. While in other states, the fee is a percentage of the estate (often a state-set rate), in Texas the fee is based on an hourly rate or a flat rate. The court will also charge a filing fee.
4. What are the steps of a Texas probate?
The steps of the probate process vary depending on the size and complexity of the estate. In general, the process will involve the following steps:
1. Filing a petition with the court
The first step in the probate process is filing a petition with the court. This petition is a document that requests that the court appoint an executor for the estate and approve the will if there is one. The petitioner (the person filing the petition) typically needs to provide evidence that they are eligible to serve as executor and that they have the deceased's will.
2. Notice to beneficiaries and interested parties
Once the petition has been filed, the court will issue a notice to all of the deceased's beneficiaries and interested parties. This notice allows them to object to the probate proceedings or the will if there is one. In Texas, this notice is typically done through a notice published at the courthouse, although there are some instances where notice may be delivered by posting in a newspaper or through certified mail directly to the beneficiary.
3. Appointment of executor
The next step is for the court to appoint an executor for the estate. In Texas, this is done through an in-person hearing. When Covid started, the hearings when remote - either by telephone or by video conference (Zoom). While we hoped that would be a permanent switch, more and more courts are going back to in-person hearings.
The executor is responsible for handling the probate process and ensuring that the deceased's wishes are carried out according to their will. In Texas, the executor is normally an "independent" executor. That means after the executor has been appointed, the court is largely hands-off. The will must expecticly state that the testator intends for the executor to serve independently. If not, the default is a dependent administration and a lot more intervention by the courts (and a lot higher attorney fee costs to the estate).
4. Inventory and appraisal of estate assets
The executor will then inventory and appraise all of the deceased's assets. This includes both physical property, such as real estate and personal belongings, and intangible property, such as bank accounts and investments. The executor will also need to pay any debts and taxes that are owed by the estate.
5. Payment of debts and taxes
The executor will then pay any debts and taxes owed by the estate. In Texas, the executor is not responsible for paying the deceased's debts out of their own pocket. The estate is responsible for paying debts from the date of death up until the date of probate.
6. Distribution of assets
Once all of the debts and taxes have been paid, the executor will distribute the remaining assets to the beneficiaries according to the terms of the will. If there is no will, or if the will does not specify how the assets should be distributed, the assets will be distributed according to Texas law.
5. What happens if I die without a will
If you die without a will, your estate will go through intestate succession. This means that your property will be distributed according to state law. Intestate succession laws vary from state to state, but generally, your spouse and children will inherit your estate. If you have no spouse or children, your estate will be distributed to your parents, siblings, or other relatives.
It's always best to consult with an attorney to ensure that your estate is handled according to your wishes. Probate can be a complex and time-consuming process, and an experienced attorney can help make sure that the process goes as smoothly as possible.
BONUS! - How to avoid probate
There are a few ways to avoid probate. One way is to create a living trust. A living trust is an estate planning tool that allows you to transfer ownership of your assets to a trustee. The trustee then manages the assets for your benefit. Another way to avoid probate is to give away your assets during your lifetime. For example, you could give your house to your children or grandchildren. Be careful with this, because it could adversely affect certain potential benefits should you need a nursing home at some point. Finally, you can create a beneficiary designation for your assets. For example, you can name a beneficiary for your life insurance policy or retirement account.
While there are ways to avoid probate, it's not always possible or desirable to do so. Probate can be a time-consuming and expensive process, but it does have some benefits. Probate allows beneficiaries to resolve any disputes about the estate. It also provides a legal process for distributing the assets of the estate.
Probate is the legal process of distributing the assets of a deceased person. It can be time-consuming and expensive, but there are some benefits to probate. Probate allows beneficiaries to resolve any disputes about the estate. It also provides a legal process for distributing the assets of the estate. There are a few ways to avoid probate, but it's not always possible or desirable to do so.
If you have any questions about probate in Texas, or if you need assistance with the probate process, please contact us. We are here to help! 214-292-4225