Losing a loved one can be extremely difficult, and dealing with the legalities surrounding their estate can add further stress. Probate is the legal process of administering a deceased person's estate according to their wishes as outlined in a valid will.
In this article, the knowledgeable probate attorneys at Texas Horizons Law Group offer a comprehensive overview of the probate process in the Lone Star State.
What Is Probate?
Probate is a process that ensures that a deceased person's (known as the “decedent”) debts are paid and their remaining assets are distributed to their beneficiaries according to the provisions of their will. The probate court located in the county where the decedent resided oversees these proceedings.
Unlike some states, Texas offers a relatively smooth probate process.
How Long Does Probate Take in Texas?
The duration of probate in Texas varies depending on the complexity of the estate.
For most probates, the factors influencing the timeframe include:
- Locating and notifying beneficiaries
- Identifying and valuing estate assets
- Resolving outstanding debts
- Distributing the estate assets to the heirs under the Will
Generally, independent administration, the most common type of probate, can take anywhere from three months to a year.
Steps to Probating a Will in Texas
Texas's probate laws are outlined in the Texas Estates Code. If you’ve been named the Independent Executor in a Will, here’s a breakdown of the key steps you’ll be expected to complete:
1. Probate Initiation: Filing the Will and Application to Probate
The appointed personal representative (also known as the executor) named in the Will must file the original document with the probate court clerk, along with a petition for probate. This must be done within four years of the decedent's death.
2. Admitting the Will to Probate: Confirming the Will's Validity
The probate court judge must review the Will and ensure that it meets the legal requirements to be considered valid under Texas law. This includes verifying the testator's (the person who wrote the will) competency at the time of signing and adherence to proper formalities like witness signatures. For Wills that have been drafted by an attorney and executed under the supervision of an attorney, this process is through the Will’s self-proving affidavit. Usually, the only person who needs to attend the hearing with the attorney is the individual named Independent Executor in the Will.
At the conclusion of the hearing, the judge signs an order admitting the Will to probate which confirms that the Will established who inherited the decedent’s estate and appoints the Independent Executor as the person with the authority to handle the estate. The probate clerk will give the Independent Executor what is known as “Letters Testamentary” as proof of the person’s legal authority to manage the estate.
3. Estate Inventory: Identifying and Valuing Assets
Next, the Independent Executor must identify and value all of the decedent's probated estate assets, including real property, and bank accounts, retirement accounts, and life insurance policies that did not have a designated beneficiary. For example, a checking account payable on death to someone or a joint with the right of survivorship would not need to be included in the probated estate assets.
4. Beneficiary Notification: Locating and Informing Heirs
The Independent Executor must locate all beneficiaries named in the Will and notify them about their inheritance.
5. Creditor Notification: Acknowledging Outstanding Debts
Notice To Creditors is published in a local newspaper in the county where the Will was probated. Additionally, the attorney for the Independent Executor will notify creditors that have a lien on the decedent’s estate property.
7. Debt Settlement: Paying the Decedent’s Dues
The Independent Executor must use estate assets to pay all valid and timely creditor claims. These may include medical bills, funeral expenses, and outstanding taxes and debts. The Independent Executor may have to sell property to pay the bills.
8. Asset Distribution: Fulfilling the Decedent’s Wishes
Once all of the decedent’s debts have been paid, the Independent Executor must distribute the remaining estate assets to the named beneficiaries as outlined in the will. Distributing the assets is generally the last step in the probate process. This can include signing deeds from the Independent Executor to the beneficiaries, transferring investment accounts to the beneficiaries that were part of the probated estate, and writing checks to the beneficiaries for money remaining in the estate.
Texas Muniment of Title: A Streamlined Option
Texas offers a simplified probate option for estates that meet specific criteria: a muniment of title.
This process is faster and less expensive than independent administration. However, it can only be used for estates that have no outstanding debts other than those secured by liens on real estate. The process involves the same steps as an Independent Administration up to the hearing. At the hearing, the judge signs an Order Admitting the Will To Probate As Muniment of Title which establishes who inherited title to the decedent’s assets. In most cases, after the Will hearing, the attorney assists in obtaining certified copies of the Will and the judge’s Order from the probate clerk and records those documents in the deed records of the counties where the decedent owned real estate to show who inherited the land. A title to a vehicle can also be transferred by the beneficiaries with probate as muniment of title. The key difference between probate with an independent administration where an independent is appointment and muniment of title is that the court does not appoint a personal representative or executor with authority to manage the estate.
Do All Wills Have to Go Through Probate in Texas?
Not all estates and assets must go through the formal probate process of probating a Will. Under some circumstances where the heirs named in the Will are the same heirs under Texas intestate laws, an affidavit identifying the family members who are the heirs, and attaching the Will, can be used to allow the heirs to establish title to land in Texas and to access some investment accounts. This is known as an Affidavit As To Identity of Heirs. An Affidavit As To Identity of Heirs can be used only if the estate does not have debts and does not owe taxes. The experienced probate attorneys at Texas Horizons Law Group can advise on whether the Will must be probated or whether an affidavit can be used to pass ownership of the estate’s assets.
Do Wills Expire?
Generally speaking, Wills don’t expire in Texas. However, a Will can be rendered invalid if the testator creates another Will later that explicitly revokes or contradicts the previous one.
Additionally, changes in a person's life circumstances, such as marriage, divorce, or the birth of a child, might necessitate revisions to a Will to reflect the updated family structure and wishes for inheritance.
What Are the Consequences of Not Probating a Will in Texas?
Failing to probate a will can lead to various complications, including:
- Delays in distributing assets to beneficiaries
- Difficulty accessing and managing inherited assets for beneficiaries
- Increased risk of creditor claims going unpaid
- Potential legal disputes among heirs
For these and other reasons, it’s wise to approach the probate process with the respect and urgency it deserves.
Do You Need a Probate Attorney?
Navigating the probate process in Texas can be tricky, especially for estates with significant assets or potential complications. A qualified probate attorney can provide valuable guidance to ensure that the process is completed efficiently and accurately, assisting with tasks like:
- Filing probate paperwork with the court
- Identifying and valuing estate assets
- Notifying creditors and beneficiaries
- Paying debts and taxes
- Distributing assets to beneficiaries
If you’ve been designated the personal representative, also usually referred to in Texas as the Independent Executor, of a loved one’s estate, a probate attorney can take much of the burden off your shoulders and guarantee that the relevant laws and procedures are followed to the letter.
