Losing a loved one is one of the toughest challenges many people experience. Whether it was a sudden and unexpected death or there was time to prepare, the aftermath can be highly emotional. In some circumstances, there may also be legal difficulties that must be dealt with, especially when they involve assets and debts in the deceased's estate. That’s where the probate process comes in.
Here’s what you should know about Texas probate, how it works, and how to get an attorney who can help you with the process in your time of need.
What Is Probate?
Probate is a legal process in which the state acknowledges the death of a person and allows for the transfer of property so that his or her assets, such as money and property, can be distributed to heirs or beneficiaries and any remaining debts can be paid.
There are two types of probate in Texas:
- Independent administration. When there is a correctly-executed will left behind that names someone as executor to the estate, it’s most likely that the estate will go through the simpler probate process of independent administration. With this type of probate, the estate’s personal representative or executor does not need a surety bond and has a fair amount of independence to finalize the estate as he or she sees fit.
- Dependent administration. The court will appoint an administrator to handle the process, since there is no will to name an executor. The administrator needs to obtain a surety bond (as a form of insurance) and will need to seek the court’s permission before performing certain actions.
Note that not all estates will need to go through probate. A small estate affidavit can allow an estate of $75,000 or less in value to avoid much of the time and expense of probate, as long as certain requirements are met. A judge may also grant an order of “no administration” for a smaller estate and allow assets to pass directly to the spouse or non-adult children.
The Probate Process
Going through probate is a multi-step process that takes time to complete. The typical procedure to begin probate for an estate starts with:
- Probate application. Regardless of whether there is a will, an application must be filed with authorities in the estate where the deceased person lived.
- Validation. There will be a delay of two weeks before a probate hearing is held to allow anyone who may object to the will or to the administrator. Then a judge will review the case. If there's a will, the named executor may accept or reject the job of completing the estate. If there isn't a will, or the named executor refuses, an administrator is appointed by the court.
Once an executor or administrator is granted authority to do the job, the majority of the work begins. He or she needs to:
- Create an inventory. This is a list of all assets and debts of the estate. However, not all assets need to go through the probate process.
- Notify heirs and beneficiaries. The executor must contact any heirs or beneficiaries named in the will, or as determined by state law if there is no will.
- Publish a notice to creditors. This is typically done through a special notice in a local newspaper. This notice must be published for a certain amount of time to allow any creditors to make claims for payment against the estate.
- Distribute the assets. If there are any conflicts or disputes regarding the will or estate, they must be resolved before assets are distributed. Then heirs or beneficiaries can receive assets left to them.
Executors are also entitled to a small percentage fee of certain transactions the estate performs, except for the final distribution.
Get Legal Help With Probate
Going through probate can be challenging, but you don’t have to do it alone. A probate attorney can be there for every step of the process and help ensure the last wishes of your loved one are met.
When you're ready to get the help you need, the experts at Miller Law Office will put their experience on the line to help families after the loss of a loved one. We look forward to serving you in your time of need. Reach out to us by phone or through the contact form on this page to arrange a consultation about your probate case today.