What is Probate in Texas?
When someone dies and leaves assets that have not been transferred to another person, those assets will have to be distributed through a probate court. The probate process in Texas is the legal process in which a court recognizes an individual’s death and supervises the administration and closing of that person’s estate, such as paying that person’s unpaid debts and taxes and distributing the remainder of that person’s assets to that person’s Beneficiaries.
Many wonder why involving a court is necessary at all. The purpose of probate is to prevent fraud after someone dies by freezing the assets of the estate until a judge can determine the validity of the Will, verify that all necessary people have been notified, all assets of the estate have been accounted for, creditors and taxes have been paid, and the remaining assets have been properly distributed according to the wishes of the deceased. The court is involved in order to oversee the process and to provide protection for all creditors and/or Beneficiaries of the estate. Essentially, the court plays the role of a referee, ensuring that everything is completed according to state laws and that the process is carried out fully and fairly. Probate administration is the carrying out of this process by a Texas probate court.
If the person who passed away, known as the decedent, left a Will, the Executor is typically the one that must file for probate. In Texas, the Executor has exactly four years starting from the date the decedent passed away to file for probate. If the Executor fails to file for probate within those four years, the laws of intestacy (situations where there is no Will) will take over and govern how the estate is administered. Additionally, if the decedent fails to leave a Will, a representative, usually an heir of the decedent, will need to file for probate.
The Main Types of Probates in Texas
In general, there are two main types of probates for an estate in Texas.
Independent Administration – This is the most common type of probate in Texas and is often used when the decedent had a Will. In these cases, they do not require a bond. Once the court has verified the Will and approved the Executor of the Will as the Administrator of the estate, the Administrator can then carry out the remaining duties of probate such as notifying all beneficiaries, collecting an inventory and evaluation of all assets, paying debts and taxes, and distributing the remaining assets without oversight from the court. Once they have completed all their duties, a final report will be filed with the court.
Dependent Administration – This is the process used when the decedent dies without a Will and in nearly every case, a bond will need to be posted. The court appoints an Administrator and then oversees every step of the entire probate process. The Administrator must get the courts approval for everything, and the court maintains complete oversight over the entire process.
What is the Probate Process in Texas?
Starting and working through a Texas probate can seem straight forward and simple but working through all the steps involved can be tedious and complicated. The steps of a typical Texas probate include:
Step 1: File an Application for Probate
A Texas probate is initiated by someone, often the deceased's Executor or attorney, informing the court of the deceased's passing by filing an Application for Probate along with the deceased's Will (if there was one) in the county where the deceased's resided.
Step 2: Notice of Hearing
Once the Application for Probate has been filed, there will be a two-week period before a hearing is held regarding that application. During these two weeks, the county clerk will post a notice at the courthouse declaring that a probate application has been filed, which gives anyone who may contest the Will or the administration the opportunity to do so. If there are no contests, the probate court officially opens the administration of the estate.
Step 3: Determine the Validity of Will and Appoint Administrator
After the notice has been posted and the two weeks have passed, a probate judge will conduct a hearing that will legally acknowledge the decedent’s passing. Additionally, the judge will verify whether the decedent had a Will, and if so, whether that Will is valid. At that same hearing, the judge will appoint the Executor (if there was a Will) or the Personal Representative (if there was no Will) as Administrator of the estate, whose duties will be to manage and carry out the administration of the decedent’s estate.
Usually, the appointed Administrator is required to post a bond, which is done to ensure the Administrator does not mismanage the estate and carries out its affairs properly.
Some states will waive the bond if your Administrator is also a Beneficiary in your estate. Additionally, you can include a request to waive a probate bond in your Will. Probate bonds can vary widely in terms of cost depending on the amount of coverage that is required.
Step 4: Collect and Value All Assets
Once appointed, the Administrator is required to take inventory of all assets that are held by the estate and report those assets to the county clerk within 90 days. The report made is called the Inventory, Appraisement, and List of Claims, which is a document sworn to be current and accurate to the best of the Administrator’s knowledge.
The inventory must be prepared with careful detail that describes each asset held at the time of death along with the values of those assets.
Independent Administrators may be exempt from this requirement. In cases where there are no unpaid debts (besides secured debts, taxes, and administrative expenses) and the decedent’s Will doesn’t directly require the Inventory, the Administrator may file an Affidavit in Lieu of Inventory with the county clerk before the 90 days, swearing an oath that there aren’t any unpaid debts and that all beneficiaries have been sent a copy of the Inventory. This option is in place in order to protect the decedent’s privacy and keep the decedent’s assets from becoming public record.
To determine the value of an estate, there must be an inventory and assessment made of that estate’s assets, accounting for everything that is owned at the time of passing. Sometimes, for larger estates, an appraiser may be needed who understands the process of inventorying an estate’s assets to assess their value fully and fairly, which totaled together is the value of the estate.
Step 5: Idenitfy and inform Creditors
Many people die leaving debts such as mortgages, debts on vehicles, credit card debts, and medical bills, which must be resolved out of their estate. These creditors must be identified and notified of the decedent’s death by the Administrator of the estate, which provides them with the opportunity to file a claim against the estate. This step can often be accomplished by publishing the notice in a local newspaper.
Step 6: Identify and Inform Beneficiaries
If the decedent died with a valid Will, the Executor must notify each beneficiary of the estate. If the decedent died with no valid Will, the probate court must determine heirship, which is often done according to intestacy law.
Parties that have interest in the estate can file for a proceeding to determine heirship. All heirs must have either signed the application or be personally served with the application. If there is the potential that unknown creditors are out there, the Administrator may be required to post a notice in the county courthouse as well as in the local newspaper.
Step 7: Resolve Disputes and Pay All Fees, Debts, and Taxes
An estate cannot be finalized if an interested party in the estate is contesting a Will or is otherwise disputing the estate. All disputes must be heard and judged in the probate court.
Often times, probating a Will is an emotional and stressful situation that can cause issues in the family. The statute of limitations to contest a Will in Texas is two years after the original probate. When contesting a Will, you must prove either that the Will was forged, the decedent was influenced by a third party, the Will was not properly executed, or there were multiple Wills.
In addition to resolving all disputes, any and all fees, debts, and taxes need to be paid. This step is very important to be complete with detail and thoroughness because debtors could eventually go after Beneficiaries for the decedent’s debts.
Step 8: Distribute the Remaining Assets
After all the above steps have been completed, the remaining assets are forwarded and distributed to the appropriate Beneficiaries according to the instructions left in the Will or according to the direction of the court.
In summary, the probate process is the way in which the court recognizes the death of someone and appoints another individual to handle and administer the deceased’s estate. It seems straight forward, but there are many tedious steps involved and sometimes, things can get complicated.
The probate process can be a long, drawn out, and complicated process, especially during a time of loss and grief. If this is something you do not want to go through alone, consider getting help from a Wichita Falls probate attorney. We offer the support and guidance you need to simplify the probate process and allow you the time you need to grieve.
Contact a Wichita Falls, Texas Probate Attorney
If you have experienced the loss of a loved one and need some direction, we are here to help. We can make sure everything is taken care of and lift the burden off of you and your family.
If you are needing to probate a loved one's estate and are feeling lost and overwhelmed, we are here to help you with this process. Contact our Wichita Falls Probate Law Firm to get assistance from a Texas probate attorney today at (940) 569-4000 or fill out our contact form for a free, confidential, no-obligation consultation.