When someone dies, their estate goes through a legal process called probate in order to be distributed to their heirs. This article will explain how to file a probate in Texas.
1. Who can file for probate in Texas?
In Texas, any interested party can file for probate, including the executor of the deceased person's will (if there is one), the deceased person's spouse, or any of the deceased person's adult children. If there is no will, the person's next of kin can file for probate.
2. What is an estate?
An estate is all of the property and assets owned by a person at the time of their death. This includes both real property (houses, land, etc.) and personal property (cars, jewelry, etc.). An estate also includes any money or other assets that are owed to the deceased person at the time of their death.
3. What is probate and what happens during the process
Probate is the legal process of winding up a person's estate after they die. This includes identifying and inventorying all of the deceased person's assets, paying any outstanding debts, and distributing the remaining assets to the deceased person's heirs. The process of probate can take anywhere from a few months to a few years, depending on the complexity of the estate.
Once you have filed for probate in Texas, the process will begin and the court will appoint an executor to manage the estate. The executor will be responsible for gathering all of the deceased person's assets, paying any debts, and distributing the assets to the heirs. The executor may also need to hire an attorney to help with the probate process.
4. How much does it cost to file for probate in Texas?
The cost of filing for probate in Texas varies from county to county. Generally, you can expect to pay a filing fee and an attorney's fee. The total cost will depend on the size and complexity of the estate.
5. Where do I file for probate in Texas?
You will need to file for probate in the county where the deceased person lived at the time of their death. If the deceased person owned property in multiple counties, you may need to file for probate in more than one county. If the person resided in another state but had property in Texas sometimes probate in Texas is necessary as well. In that case, you would likely file in the state where the deceased person resided and in the Texas county where the Texas property was located.
6. How do I file for probate in Texas?
The first step is to file a petition for probate with the court. You will need to provide the court with information about the deceased person, their assets, and their heirs. Once the petition has been filed, the court will issue a notice to all interested parties, allowing them to object to the probate proceeding. If there are no objections, the court will appoint an executor to oversee the probate process.
7. Do I have to hire an attorney?
Yes. Only in very, very rare circumstances will a person be allowed to file probate without hiring an attorney. It is a good idea anyway because probate can be a complex legal process, and an experienced attorney can help ensure that the process goes smoothly.
8. What are the deadlines for filing for probate in Texas?
There are strict deadlines for filing for probate in Texas. If you wait too long, you may lose the right to file for probate altogether. For example, if the deceased person left a will, the executor has four years from the date of death to file for probate.
9. What are the consequences of not going through probate?
It depends. If the deceased person's assets are all "beneficiary designated," that is, there is a beneficiary listed, then there may not need to be a probate. It is easy to make a mistake though - often people think there doesn't need to be a probate, but there is. For example, if a husband and wife are both listed on the title to a house, in Texas it does not mean the surviving spouse automatically inherits the house. Even if the unprobated will says so. Some form of probate will need to be done to show that the deceased spouse passed and who the owner of that person's share of the house is after the death. Rather than assume no probate is needed, it is always better to discuss the situation with an experienced probate attorney.
If you do not go through the probate process and there are assets that are not beneficiary designated, then Texas laws that apply to people without a will (the laws of "intestate succession") are used. Often those laws are way different than what the deceased would have wanted. the distribution of the deceased person's assets will be decided by the courts.
10. What are the fees for filing for probate in Texas?
The court will charge a filing fee when you file the petition for probate. The amount of the fee will vary depending on the county where you file, but it is typically around $400. You may also have to pay other fees throughout the probate process, such as fees for hiring an attorney or appraising the deceased person's assets, publishing a notice to creditors, and getting copies of letters testamentary. Recently Texas courts have increased the filing and other fees, so expect to pay around $700-$750 for fees on top of the attorney fees.
11. What are letters testamentary and how do I get them?
Letters testamentary is a document from the clerk of the probate court that shows the executor was appointed by the court to administer the deceased person's estate and follow their wishes as laid out in the will. If the decedent had no will, the letters testamentary will appoint an administrator to oversee the probate proceedings. Letters testimony is received from the probate court's clerk after the court has appointed the executor and has been sworn in.
12. What does it mean for an executor to be sworn in?
The executor is the person who is responsible for overseeing the probate process. They will be in charge of identifying and inventorying the deceased person's assets, paying any outstanding debts, and distributing the remaining assets to the heir. The executor has a fiduciary duty to the heirs, meaning, the executor must treat the heirs as well or better than the executor treats themselves. The court administers an oath to the executor that they will faithfully fulfill those duties.
13. How long does the probate process take in Texas?
The length of the probate process will depend on a number of factors, including the size and complexity of the estate, whether there are any objections to the probate proceeding, and whether the executor is doing everything correctly. In general, the probate process can take anywhere from a few months to a few years.
If you're dealing with the estate of a loved one who has passed away, filing for probate in Texas is likely going to be one of your first steps. This article has outlined the process and what to expect as you go through it. The good news is that we can help guide you through every step. If you have any questions about how to file for probate in Texas, or if you need help with any other estate planning matters, please contact our office at 214-292-4225