What is probate?
Probate is a legal process by which the court validates a decedent’s will and oversees the settlement of their debt and disbursement of their estate.
Typically, the executor who the decedent named in the will is responsible for taking the document to the probate court. The term “settling an estate” refers to the steps the executor takes to administer and distribute the estate.
However, probate may still be carried out if there’s no will. This situation is known as intestacy.
What is an intestacy, and how does it affect inheritance in Texas?
When an individual dies without a valid will in Texas, they are said to have died intestate. In such a situation, probate will still commence, but the court has to decide who inherits the estate since the decedent’s wishes are unknown. This inheritance process is known as intestate succession, and the inheritors, in this case, are known as default heirs (the descendant’s closest family members in a specific order).
The intestate succession law in Texas disburses property to your closest surviving family.
If you die leaving a spouse and children who are also descendants of your spouse, your spouse receives your home, all of your community property, and one-third of your personal property. Your children inherit what’s left.
Your children will inherit everything if you have no surviving spouse and vice-versa.
If you die with neither spouse nor children, your entire estate will go to your parents if alive or your siblings if they’re the next closest surviving blood relative.
Note that intestacy will also be the case if the court finds the decedent’s will to be invalid, violating any legal requirements of writing a will in Texas.
What are the steps involved in probate?
Probate is a legal process that can take time and money depending on the complexity of the estate passing through the court.
Some probate processes conclude within four months, while some may take as long as a year or more, especially for large estates. And it’s important to know that the process must conclude before the heirs can inherit.
Probate in Texas is carried out through the following steps:
1. Petitioning the will
The executor named in the will must file a petition to the probate court in the same county where the testator domiciled at the time of their death. This petition will contain the decedent’s original last will and death certificate, alongside a written formal petition for probate to commence.
The court then has to schedule a hearing to approve the will and executor. This hearing gives room for concerned parties to state their objection.
If the court approves the will, the executor will be given a document known as Letters Testamentary, authorizing them to administer the estate. In the absence of a valid will or a case where the executor is rejected, the court appoints an estate administrator instead.
This person has the same duties as the executor.
2. Notifying the public
Now that probate has officially commenced, the executor has to notify all the beneficiaries, family, and creditors of the deceased. Texas law mandates the executor to publish a public notice in newspapers.
3. Inventorying the estate
The executor then has to identify, inventory, and evaluate the estate of the deceased. The estate in this context refers to those assets which must pass through probate, known as probate assets.
This may include cash, real estate, bonds, personal belongings, etc. The executor may open a checking account for the estate to settle all expenses incurred during probate.
4. Settling debts, taxes, and probate expenses
A great deal of work is required of the executor here as they have to file tax return forms on behalf of the deceased while assessing who is a legitimate creditor of the estate and who’s not.
It’s advisable to hire a probate attorney as their expertise can be golden in such situations. All taxes, debts, probate expenses, and court fees are settled from the estate account.
5. Distributing the assets
On completing all of the above, the executor has to present a record of how they have managed the estate. If the court approves, they grant the executor the right to disburse the estate.
However, the beneficiaries will only receive what’s left of the estate after all debts, bills, and taxes have been settled.
6. Closing the estate
On completing all of the above, the executor can then file a petition for the estate to be closed and for the court to relieve them of their executor role.
Must probate be done in Texas?
It’s worth knowing that not all estates must go through probate. An estate is only subject to probate in Texas if it is worth $75,000 or more. Estates below this value do not have to go through the court.
Furthermore, a decedent may have assets worth over this value, but they may not have to go through this time-consuming legal process.
Through Estate planning, one can avoid probate by holding valuable assets in a living trust and payable-on-death (POD) bank accounts. Such assets are typically known as non-probate assets and will pass to beneficiaries outside probate.
With proper estate planning, one can therefore ensure their estate and loved ones are kept away from the publicity and complications that probate brings.
What are non-probate assets?
Non-probate assets are assets that pass to beneficiaries without the interference of a will or probate. Such assets typically will have a beneficiary designation that supersedes a will or is held jointly. Examples of assets that usually pass outside probate in Texas include:
- Assets in a living trust
- Jointly held property with rights of survivorship, such as real estate jointly held with a spouse.
- POD bank accounts
- Life insurance proceeds
- Retirement accounts.
Can minors inherit?
Minors (children below 18) cannot inherit under Texas law.
That means the court will have to appoint them a guardian if the decedent didn’t name one in the will. The guardian will manage the assets on the children’s behalf until they come of age to inherit.
While probate can seem straightforward, it is not always so. Problems often arise, such as when a party contests the will, an unsatisfied heir litigates the estate, the executor gets accused of mishandling the estate, funds are insufficient to pay debts, and lots more.
Having a probate attorney working with the executor often makes things easier. But some people prefer avoiding probate entirely so that their loved ones can inherit quickly and easily.
This can be achieved through proper estate planning. An estate planning attorney can also help you plan with an eye towards probate minimization so that the assets going through probate are reduced and risks minimized.