To “probate a will” means to pass a will through the legal process where the property and estate of the deceased will holder are distributed to the intended beneficiaries. Intended beneficiaries typically include family, close relatives, friends, and other loved ones. The probate process is generally handled by the will executor named in the will.
In the state of Texas, the probate process usually addresses:
- Validation of the will’s authenticity;
- Identification/classification of the property;
- Valuation of the property if needed; and
- Timely distribution of the property
If a person dies without a will (intestate), the state may have to govern much of the probate process, often yielding different distribution results.
What is Probate?
Probate of a will is a procedure in which a deceased persons’ last will and testament are offered to the Court. The Court opens an estate and appoints an executor or administrator of the estate. The Court decides during a hearing whether the estate can be processed without the Court’s scrutiny. The Court will instruct the executor or administrator to work with a lawyer to identify any assets and liabilities to be distributed to the beneficiaries named in the will. Most estates in Texas must undergo probate administration proceedings.
Some estates are exempt from probate procedures, depending on how the assets are owned. Estates may qualify for simplified probate proceedings. Consult an attorney for legal advice if you aren’t sure what aspects of Texas’ probate code are required for distributing assets.
The probate process typically begins when someone submits a decedent’s will to the court. The court must validate the will before appointing someone to administer the estate and oversee the probate process. This person is known as an independent executor.
In many instances, the executor is named in the original will. After an administrator has been appointed, they must inform all the decedent’s creditors of the individual’s death by providing a death certificate. The administrator must pay off all valid claims from creditors and distribute the remaining property according to the will.
What is an Inventory of Assets?
Once the court approves the executor, they can start the process of cataloging and reporting the assets held in the estate. The executor must identify financial accounts and people or entities that owed the deceased money. After cataloging the property, the executor can file an inventory of the assets with the probate court. An executor only has 90 days from the day the executor is named to the day they file the inventory with the court.
What Are Some Unique Features of Texas Probate Laws?
Texas probate law is considerably less complex than the laws of other states. Texas probate laws allow for “Independent Administration of an Estate.” Texas probate laws allow executors to probate a will with less intervention from the courts. Executors can also execute the distributions without having to post a bond (i.e., obtain insurance to protect the state). Executors in Texas also do not need to obtain court permission for various steps, including:
- Paying off debts
- Setting aside an allowance for family members
- Selling particular estate property items
- Distributing assets
Alternatively, the will can be subject to the “Dependent Administration of Estate,” where the court supervises more of the probate process.
What Are Small Estate Affidavits?
In some instances, the people who inherit from an estate don’t have to go through a probate court proceeding or use a muniment of title. If there is no will and the total value of the probate estate is $75,000 or less, the people who inherit property can prepare a simple affidavit to collect the property.
What Are Small Estate Procedures?
Executors can use a simplified small estate process if the property’s value doesn’t exceed what’s needed to pay the family allowance and certain creditors. The executor may present an accounting showing where the estate money went, in which case the court approves it and closes the estate.
If, after expenses of the funeral and last illness have been paid, the remaining assets don’t exceed the amount of the family allowance, courts can issue an order of no administration, where estate assets are assigned to the surviving spouse or minor children.
Is Probate Always Necessary Under Texas State Laws?
In Texas, some property and assets can be transferred without going through the probate process. These include payable-on-death accounts, community property with the right of survivorship, property held as joint tenancy with a right of survivorship, certain life insurance benefits or proceeds, and certain annuity benefits.
When is Probate Unnecessary in Texas?
Assets that can be easily transferred from a person’s estate to family members and loved ones without going through the probate process in Texas include:
- Community property with a right of survivorship
- Joint tenancy property or real estate that entails a right of survivorship
- Bank accounts payable on death
- Life insurance policies that name beneficiaries
- Survivor benefits from an annuity
What is a Muniment of Title?
Muniment of title is considered an inexpensive way to transfer and divide estate assets when a valid will is available. The muniment of title process may be utilized within Texas probate proceedings when:
- A valid will is present
- The decedent has no other unpaid debts, except those involving the homestead or other exempt property
- There are no Medicaid claims with the estate associated with recovery of benefits
Muniment of title is a legal document showing evidence of ownership of an asset. Heirs to an estate may file for the probate of a will by way of muniment of title. During this process, the Court is asked to recognize the properties in the estate passed to the beneficiaries under the will according to its terms and requests the property titles be transferred to them. This legal mechanism is unique to wills in Texas.
Muniment of title offers a streamlined process that bypasses the typical administration of a will. By presenting a will before the probate court, the parties ask the judge to recognize them as owners of the properties designated to them and that no other court action is necessary on the estate. A will acts like a deed proving ownership over a property in these cases.
In Texas, probating a will as a muniment of title is an easy way to settle a decedent’s estate.
How Long Does Probate Take?
Most probate cases last three to six months but may take longer if disputes arise. In most cases, a will can be admitted to a probate court in 30-45 days.
If you are involved in the probate of an estate, you may need to hire an attorney. Probate laws in Texas can be confusing, but an experienced attorney can explain the process and help you make the right choices.
Do I Need a Lawyer For Help With Probate Laws in Texas?
The probate process may often involve some critical decisions and distinctions. You may need to hire a Texas probate lawyer if you need assistance with the probate laws in Texas.
Your attorney can help you review documents and give you legal advice on how Texas laws may affect the property or estate involved. Also, if there are any legal conflicts, your attorney can represent you in court to help resolve the dispute.