In Texas, as in other states, probate of a will is a procedure in which a deceased person’s last will and testament are offered to a probate court for administration. In the Texas probate process, the probate court opens an estate and appoints an administrator of the estate. The court decides during a hearing whether the estate can be processed without the court’s supervision.
The court may order a standard probate process. If so, the court instructs the administrator to work with a lawyer to identify all of the assets as well as the beneficiaries to whom the assets should be distributed per the will. Also, the deceased’s debts and liabilities must be identified and paid. Many estates in Texas must go through probate.
Once the assets, liabilities, and beneficiaries are identified, the assets remaining after debts are paid may be distributed to the beneficiaries, and the estate may close. During the probate process, the administrator must maintain the estate assets.
Some estates are exempt from probate procedures, depending on how the assets are owned. Also, in Texas, certain estates may qualify for simplified probate proceedings, as noted below.
The probate process typically begins when someone submits a decedent’s will to the court. The court must validate the will before appointing someone to administer the estate and oversee the probate process. This person is known as an “administrator.” In many instances, the administrator is named in the original will.
After the administrator has been appointed, they must inform all the decedent’s creditors of the decedent’s death by providing a death certificate. The administrator must pay off all valid claims from creditors and distribute the remaining property according to the will.
Of course, if a person dies without a will, i.e., “intestate” in legal terminology, the laws of intestacy in Texas determine who inherits their assets and liabilities.
What Forms Are Needed for Probate?
First of all, it is important to know that many forms are not accessible online. A person may have to go to a law library in the county in which the probate should proceed. In addition, a person may want to contact the clerk of the probate court to ask about the forms that should be used in that county and how they can be obtained.
In addition, the forms that a person would need are going to depend on the type of process they pursue. A person might want to draft an Affidavit of Heirship in certain circumstances. Forms for this can be obtained from the Texas Comptroller. Or a person might make use of the small estate probate process and then use a Small Estate Affidavit form.
If a person left a will, their heir or a family member would begin by submitting an application for probate with the will and the death certificate to the court. They would obtain the necessary forms from the clerk of the court in the probate court in which they file. If an estate is large and complicated, a person would want to consult a probate lawyer for guidance.
What Are Some Unique Features of Texas Probate Laws?
Texas probate law is considerably less complex than the laws of other states. Texas probate laws allow for “Independent Administration of an Estate.” This allows administrators to probate a will with less intervention from the courts. Administrators can also execute the distributions without having to post a bond (i.e., obtain insurance to protect the state). Administrators in Texas also do not need to obtain court permission for various steps, including:
- Paying off debts;
- Setting aside an allowance for family members;
- Selling particular estate property items;
- Distributing assets to the named beneficiaries.
Alternatively, the will can be subject to the “Dependent Administration of Estate,” where the court supervises more of the probate process.
Is Probate Always Necessary Under Texas State Laws?
In Texas, some property and assets can be transferred without going through the probate process. These include payable-on-death accounts, community property with the right of survivorship, property held in joint tenancy with a right of survivorship, certain life insurance benefits or proceeds, and certain annuity benefits.
Another procedure that is available in Texas is an application to determine heirs. This begins with filing the application with the probate court. It is the move to make when either of the following is the case:
- The estate has not been administered through probate, but it includes property that is located in Texas;
- There is property located in Texas that the deceased left out of their will.
When an application for determination of heirship is submitted, a probate court determines who the deceased’s heirs are and which heirs get which shares of the property.
Yet another abbreviated process is the “muniment of title” process. This process is used when there is a will, and the following conditions are met:
- There are no unpaid debts except those secured by real estate, e.g., a mortgage;
- Medicaid has no claim to recover benefits received by the deceased person.
A person starts this process by filing a will with the probate court along with a request to probate it as a muniment of title. If the court decides that a full probate administration is not necessary, it admits the will into probate as a muniment, or evidence, of title to the estate assets. Essentially, the will serves as the document that transfers the assets to the named beneficiaries.
When Is Probate Unnecessary in Texas?
Assets that can be easily transferred from a person to family members and loved ones without going through the probate process in Texas include the following:
- Community property with a right of survivorship;
- Joint tenancy property;
- Real estate owned with an interest that includes a right of survivorship;
- Bank accounts payable on death;
- Life insurance policies that name beneficiaries; and
- A survivor’s benefit from an annuity.
What Is the Easiest Way to Probate a Will?
Yet another simplified process that is available for small estates in Texas is the small estate process. This may be used if the value of the property does not exceed the amount required to pay the family allowance. This is an amount paid to a surviving spouse, minor children, incapacitated adult children, and certain creditors.
The executor submits to the court an accounting that shows where the money in the estate goes. The court approves it, if that is appropriate under the circumstances, and closes the estate.
Likewise, if the expenses of a funeral and last illness have been paid, and the assets left are not more than the amount of the family allowance, the court may issue an order of no administration. This order passes the estate assets to the surviving spouse and/or minor children. Then, the matter is concluded.
How Long Does Probate Take?
Some experts express the opinion that probate in Texas is much simpler than probate in many other states. This is because Texas has an “independent administration” of estates. This process allows most Texas executors to wrap up estates with limited court supervision.
Most probate cases last three to six months. Probate may take longer if disputes arise, e.g., a person who is not named as an heir challenges the validity of the will. As in most things legal, the length of the probate process depends on the particular facts of the case.
What Happens When a Beneficiary Dies During Probate?
If one of the beneficiaries dies before the deceased, they do not receive their bequest as provided in the will. This means that the portion of the assets that they were supposed to inherit remains in the deceased’s estate. In the end, it is distributed to the other beneficiaries who survive.
There may be a clause in the will that states that if a certain beneficiary dies before the deceased, their share should pass to another contingent beneficiary. If the will does not contain such a clause, the inheritance is divided and redistributed to the other beneficiaries who survive at the end of the probate process. If a will does contain such a clause, the name contingent beneficiary would inherit in place of the deceased beneficiary.
Or, if the heir who dies is a child of the deceased and leaves surviving children of their own, their inheritance would pass to their surviving children.
What Happens if a Will Is Never Probated?
Not submitting a will to probate within the time allowed for by Texas state law can have serious consequences. An executor or personal representative has a fiduciary duty to the heirs of an estate to present a will, if it exists, and complete the probate process.
Failure to present a will for probate is not a criminal offense, but a person could be sued by another person or entity who is harmed. If a person fails to present a will for probate with the intent to conceal the existence of the will for financial gain, then it might be a criminal offense.
For example, suppose a person’s father decided to leave his entire estate to his favorite charity and not his son. His son is to receive nothing from the father’s estate. The son chooses not to present his father’s will for probate because the laws of intestacy would allow the son to inherit their father’s entire estate. In this instance, a failure to file the will would expose the son to criminal liability.
If a will names a person as the executor, they should seek legal advice. A probate attorney can guide a person in deciding whether to submit a will for probate.
Do I Need a Lawyer For Help With Probate Laws in Texas?
The probate process may often involve some critical decisions and distinctions. You want to consult a Texas probate lawyer if you need assistance with the probate laws in Texas.
Your attorney can help you review documents and give you legal advice on how Texas laws may affect the property or estate involved. Also, if there are any legal conflicts, your attorney can represent you in court to help resolve the dispute.
