When someone dies, their estate will typically need to be distrubed through probate court proceedings. Through the probate process, the decedent’s estate is distributed to heirs and designated beneficiaries, and any remaining debts owed to creditors are paid off. This is done through analyzing the decedent’s will. Some examples of the goal of the probate process include:
- Verifying the validity of the decedent’s will;
- Identifying and taking inventory of the decedent’s belongings;
- Having certain property appraised, such as land or valuables;
- Paying off the decedent’s remaining debts and taxes; and
- Distributing the decedent’s property in the manner they originally intended.
The Uniform Probate Code, or UPC, is a body of laws that governs wills, trusts, and estates. It provides uniform procedures in place of the formalities of a traditional probate court. The intention is that court procedure is made more simple and less expensive. The Uniform Probate Code covers:
- Determination of a will;
- Functions of an executor; and
- Process of administering an estate.
UPC is currently adopted in eighteen states. Texas is not one of them; however, Texas does have a relatively streamlined probate process. Further, if a person dies without a will (or dies “intestate”), the state may need to govern much of the probate process, which can often yield different distribution results.
What Does the Probate Process Look Like in Texas, and How Long Does it Take?
Texas has some fairly unique probate laws to help simplify the process. An example of this is how the executor of an estate does not need to obtain court permission in order to pay off debts, set aside an allowance for family members, sell certain estate property items, and distribute assets. Additionally, Texans may be able to avoid the probate process altogether. The ownership of some assets can be transferred from the decedent to the new owner, such as:
- Payable on death accounts;
- Community property with right of survivorship;
- Property that was held as joint tenancy with right of survivorship;
- Certain life insurance benefits or proceeds; or
- Certain annuity benefits.
The full probate process is not required in Texas for:
- Estates valued at or below $50,000 (such estates are able to avoid probate entirely);
- Estates in which the value is not more than family allowances and some debt payments (such estates are entitled to a simplified probate process); or
- Wills that request no probate process, or all inheritors are in agreement as to the terms of the will and distribution of the estate (such estates are entitled to a simplified probate process as well).
If the decedent did not make a will, that will directly influence estate value for probate purposes in Texas. The whole of the estate is valued, with the exception of the homestead as well as any exempt property. This would allow the estate to skip probate altogether. When the probate process is skipped, an inheritor typically utilizes an affidavit signed under oath, as well as the decedent’s death certificate, in order to claim the estate’s assets.
The length of the probate process depends on greatly on the estate itself. Obviously, larger estates, or those accompanied by complicated wills, will have a longer probate process than a more simple estate. In Texas, when probate is actually necessary, the process may take years. This is because the will must be submitted for probate within four years following the death of the estate owner.
The executor of the estate must notify beneficiaries of the impending probate within sixty days; and, they must file a statement with the court within ninety days that the beneficiaries have been notified. The inventory of claims and assets must be completed within ninety days of the estate executor being appointed, and beneficiaries typically receive their awards in four to eight months.
Is a Will Necessary in Texas?
A last will and testament ensures that your death and the disposition of your property will be as easy on your family and beneficiaries as possible. It can help eliminate confusion and provide clarification.
Additionally, in Texas, you do not need an attorney to make a will; you are able to make your own will (“holographic will”), as well as finalize your will by signing the will in the presence of two witnesses (those two witnesses will also need to sign the will in front of you). You do not need to notarize your will in order to make it legal, and you can use your will to name an executor.
Thus, although creating a will is not technically necessary in Texas, it is absolutely beneficial to you as well as your loved ones. If you die without a will, your property will be distributed in accordance with state intestacy laws, which gives your property to your closest relatives, beginning with your spouse and children. If the court exhausts your list of relatives and finds that are none are living, the state may take ownership of your property.
Do I Need a Wills, Trusts, and Estates Lawyer in Texas?
Although the probate process in Texas is rather simplified when compared to other states, there are some distinct features of Texas probate laws that require a good understanding. Estate law, especially probate law, can be complex, and involve some very important decisions or distinctions.
A skilled and knowledgeable Texas probate attorney will help ensure you understand all of Texas’s specific probate laws, and assist you in reviewing documents. Additionally, they can provide assistance and representation should any conflicts or disputes arise throughout the course of the probate process. A probate attorney will ensure all deadlines are met.
Intestate estates and contested wills could especially benefit from the assistance of an experienced probate attorney. All of the above are one of the many benefits of having a local wills, trusts, and probate lawyer, such as an estate attorney in the Fort Worth or Dallas area, to assist you with disposing your property in accordance with your wishes.