When someone dies, their estate must be distributed through a specialized “probate” court. “Probate” refers to the legal process in which a person dies (the “decedent”) and their estate is distributed under court supervision.
Probate may be used to determine the legal validity of the decedent’s will or to correctly distribute the estate’s assets to any beneficiaries named in the will. This is done by analyzing the decedent’s will. Probate is also used to establish a plan for paying off any outstanding taxes and/or debts owed by the decedent’s estate.
Some examples of the goal of the probate process include:
- Determining the authenticity and legality of an existing will
- If the decedent died without a will (“intestate,”) determining who the heirs are under the law
- Identifying and taking inventory of the decedent’s belongings
- Having certain property appraised, such as land or valuables
- Overseeing the distribution of the decedent’s property and assets as intended
- Preventing executor and estate administrator misconduct, such as fraud
- Evaluating any debts, outstanding claims, or lawsuits relating to the decedent’s estate
- Paying off the decedent’s remaining debts and taxes
- Distributing the decedent’s property
The Uniform Probate Code, or UPC, is a body of federal laws that governs wills, trusts, and estates. It provides uniform procedures in place of the formalities of a traditional probate court. The UPC intends to make court procedures simpler and less expensive.
The Uniform Probate Code covers:
- Determination of a will
- Functions of an executor
- Process of administering an estate
UPC is currently adopted in eighteen states. Texas is not one of them. Texas has its own relatively streamlined probate process.
What Does the Probate Process Look Like in Texas, and How Long Does it Take?
Texas has some fairly unique probate laws to help simplify the process. An example of this is how the executor of an estate does not need to obtain court permission to pay off debts, set aside an allowance for family members, sell certain estate property items, and distribute assets.
Additionally, some Texans may be able to avoid the probate process altogether, at least for part of their estate. The ownership of some assets can be transferred from the decedent to a new owner, such as:
- Payable on death accounts (joint accounts where the survivor receives the money in the account immediately upon the other person’s death)
- Property that was held as joint tenancy with the right of survivorship
- Community property with the right of survivorship
- Certain life insurance benefits or proceeds
- Certain annuity benefits
The full probate process is not required in Texas for:
- Small estates (those valued at or below $50,000. Such estates can avoid probate entirely)
- Estates in which the value is not more than family gifts and some debt payments (such estates are entitled to a simplified probate process)
- Wills that request no probate process because their provisions are straightforward and clear, or all inheritors agree to the terms of the will and distribution of the estate (such estates are entitled to a simplified probate process as well)
The length of the probate process depends greatly on the size and nature of the estate itself. Larger estates, or those accompanied by complicated wills, will have a longer probate process than a simpler estate. Once the will is submitted to probate, the executor of the will must notify beneficiaries of the impending probate within sixty days, and they must file a statement with the court within ninety days, alerting the court to the fact that the beneficiaries have been notified.
The inventory of claims and assets must be completed within ninety days of the estate executor being appointed, and beneficiaries typically receive their awards in four to eight months. In other words, if the will is submitted to probate promptly, probate takes about a year. However, the will does not have to be submitted for probate for the first four years following the estate owner’s death. This can make the probate process take as long as 5 years to complete.
Is a Will Necessary in Texas?
A last will ensures that your death and the disposition of your property will be as easy on your family and beneficiaries as possible. It can help eliminate confusion and provide clarification.
Although creating a will is not technically necessary in Texas, it benefits you and your loved ones. If you die without a will, your property will be distributed per state intestacy laws, which give your property to your closest relatives, beginning with your spouse and children. If the court exhausts your list of relatives and finds that none are living, the state may take ownership of your property.
In Texas, you do not need an attorney to make a will; you can make your own will (“holographic will”). You must finalize your will by signing the will in the presence of two disinterested witnesses (people who are not scheduled to receive anything from the will).
Those two witnesses must also sign the will in front of you. In Texas, the will does not need to be notarized. You do need to name an executor for the will. An executor is the person responsible for carrying out your will’s provisions.
Do I Need a Wills, Trusts, and Estates Lawyer in Texas?
Although Texas’s probate process is simplified compared to other states, some distinct features of Texas probate laws require a solid understanding of the law. Probate courts may have their own set of local rules and procedural guidelines.
A skilled and knowledgeable probate lawyer will understand the applicable rules and procedures of probate court. Estate law, especially probate law, can be complex and involve some important decisions. Among other things, a probate attorney will ensure all court deadlines are met.
A skilled and knowledgeable Texas probate attorney will help you understand Texas’s specific probate laws and how they will affect your real and personal property transfer. A probate lawyer can draft your will to ensure it complies with all of Texas’s laws concerning making a will and includes every provision you want it to.
Additionally, they can provide assistance and representation for enforcing your wishes should any conflicts or disputes arise throughout the probate process, such as will contests (when someone challenges the validity of the entire will or one or more of its provisions).
If you do not plan to write a will, you should still talk to an estate attorney to make sure that Texas state law will award your property to the persons you want to get it. Intestacy laws generally give property to the spouse first and then to blood relatives. If you have someone who is not a blood relative to whom you want to make a gift (for instance, a stepchild, a friend, or a charity), an estate lawyer can help you construct a method other than a will to ensure your final wishes are respected.
