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02. Probate

The Basics of Probate 

The term "Probate" assumes someone died leaving a Will.  Probate is the process of the Court appointing a representative to handle and wind down someones Estate and fulfilling the terms of their Will after they die.  If a Texan dies leaving a Will, then normally the person appointed to oversee the Estate is called an Executor.  If someone passes without a Will, it means they have passed intestate and the person appointed to oversee the Estate is called an Administrator.  Whether an individual dies intestate or testate, the Court oversees and ensures that the Court appointed representative complies with the Will or with the rules set forth in the Texas Estates Code.  However, probate is not required for every Estate, so the first thing to determine is whether an Estate needs to go through the probate process.  Only assets that pass through an individuals Will or Estate are subject to this process.  An experienced attorney in Probate Law can assist you in determining whether probate is necessary and walk you through the many alternatives to probate and the steps in the process to make sure your estate is properly settled. 

Testate-Passing With a Will

As mentioned above, when someone dies leaving a Will, then they are considered to have died testate.  If probate is necessary, a Will needs to be probated within four (4) years after someone passes away to be valid.  To file a Will for probate, an application is filed by an interested party asking the Court to admit the Will to probate. This individual is typically designated in the Will as the Executor of the Estate. There are different options available for probating a Will in Texas; here are a few:

1.  Probate of a Will: this is the most standard and formal type of Probate.  In this probate process, the Court appoints a personal representative, often called the Executor, to wind down the Estate and distribute the assets to the beneficiaries listed in the Will.  Once an Executor is appointed, the Court will issue the Executor Letters Testamentary to handle the estate.  As an Executor, you have a fiduciary responsibility to the Beneficiaries of the Will.  You also have responsibilities and duties under the law that need to be completed and reported to the Court. 


2.  Probate of a Will as Muniment of Title: this is a quick and efficient way to transfer title of estate assets to the beneficiaries listed in a Will.  In this probate process, although an Executor might be named in a Will, the Court does not appoint a personal representative to handle the Estate.  Instead, the individual who files the Will for probate must file an affidavit with the Court stating the terms of the Will have been completed.  To qualify for this option, there must be no debts owed by the Estate (unless it is secured by real estate) and there must not be a medicaid claim against the Estate. 

Intestate-Passing Without a Will

As mentioned above, when someone dies without a Will, their assets pass by the law of intestacy.  When someone passes without writing their own Will, the Texas Estates Code states how an individual's property transfers at the time of their death.  Not everyone's estate passes in the same way; the categorization of your property and your family dynamics at the time of your death determines how the property will be distributed.  There are different types of administrations available in Texas, here are a few:

1.  Administration: To open an administration of an estate without a Will, an interested party will file an application asking the Court to appoint an administrator and asking the Court to determine who the heirs of the decedent are. There are two different types of administrators that can be appointed to an Estate, and they are as follows:

  • Independent Administration: this method of administration is the most efficient option of the two.  To be appointed as an Independent Administrator, all the heirs of an Estate have to agree to the appointment of an administrator to serve independently.  Once an individual is appointed as the independent administrator, they can administer the Estate independently from the Court.  This means they do not need to seek permission from the court to perform certain tasks.  They still must comply with all of the duties and responsibilities required of them under the law.

  • Dependent Administration: with a dependent administration, an individual is appointed as a dependent administrator.  With a dependent administration, the administrator will need to post a bond equal to the value of the Estate.  The administrator will also be working dependently with the Court, which means they need to seek permission from the Court to perform certain duties in administrating the Estate. 

2.  Small Estates Affidavit: this is an option available to individuals who are an heir and the Decedent passed without a Will.  If the Decedent's Estate is less than $75,000.00, not including a homestead, and the only real property to be transferred is the homestead, a Small Estates Affidavit might be a less costly administration option available to you that can avoid unnecessary delays.  This process does not require an administrator to be appointed.  Caveat: not all financial institutions accept this form of administration.

3.  Affidavit of Heirship: this is an alternative to an administration.  An Affidavit of Heirship transfers assets in an estate when no administration is needed; however, not all financial institutions accept an Affidavit of Heirship as an alternative to a probate or administration.  An Affidavit of Heirship is mostly used to transfer title to real property to the heirs.  This instrument is a sworn document that establishes who the heirs are and the property to be transferred, which is signed by the heirs and two disinterested witnesses and filed with the deed of records in the county where the property is located.  This type of administration does not require a Court proceeding, which saves on time and money.

Request a Free Consultation

We know how stressful and confusing dealing with this type of situation can be.  After the death of a loved one, thinking about all things probate can be overwhelming, so let us take some of that burden off you and assist you in the probating your loved ones Estates.  Schedule a free consultation and we can help you determine which probate options apply to you and your situation.

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