PROBATE OVERVIEW
WHAT IS PROBATE?
Probate, or estate administration, is the broad term that is used for a variety of procedures to gather a decedent’s assets after a person dies. Probate refers to the system of “processing an estate”, which requires those who are left behind to pay decedent’s debts, deal with creditors and transfer property to their beneficiaries or heirs.
Since Texas recognizes several forms of Probate or estate administration, the answer to the question to what it entails, how long it takes and how much it costs is almost entirely dependent on facts and circumstances unique to each case. The single biggest factor in deciding which type of probate to pursue is whether the Decedent left a will.
WHAT IS PROBATE?
Probate, or estate administration, is the broad term that is used for a variety of procedures to gather a decedent’s assets, pay their debts/creditors and transfer property to their beneficiaries or heirs.
Can an Estate with out a Will be Probated?
Yes, every estate that has assets that need to be transferred after a person’s death will have to be probated. It is preferable to do with with the help of a Will, as it makes the process faster and cheaper, but not having a Will does not mean you can not go through probate. The main difference is that with a Will you get to decide/control yourself what happens with your assets, without a Will, Texas Law will determine the details of what happens. We will discuss probate with a Will and probate without a Will below.
PROBATE WITH A WILL
How do you probate a will?
For a Will or Last Testament to have any legal effect, it must be probated in Probate Court to prove its validity, and that it was not revoked. The probate procedure starts with filing the original will and an application with the court, asking the court to admit the will to probate (Click here for more information for executors and trustees).
Most important steps during the Probate Process:
- Naming a Personal Representative: When your loved one died with a will, a personal representative or executor will be named for the estate. (If there is no will, or no will can be found, the court will appoint someone. Usually, this will be one of the remaining living family members, like a spouse or the adult child of the deceased who wants to step in the role of the personal representative. This can be done by requesting the cour tot appoint them as the court appointed-representative.) After the personal representative or executor is identified, they will take an oath to perform their duties as required by law. As your attorney, we can help you with every part of this process.
- Notification of Death to Creditors And Heirs: Texas requires that a notice is published in a newspaper in the County in which the probate proceeding is pending. The notice is meant to inform any potential creditors of the deceased that the probate proceeding has been opened. The notice will inform the creditors who the executor and attorney of record are so that creditors can file a claim against the estate so that they may be repaid by the estate. The Notice to Creditors is a routine matter which we can prepare for you.
- Creating an Inventory of The Estate’s Assets: The personal representative or executor has the legal requirement to inventorying all estate assets. This is accomplished so the total value of the estate can be determined and serves as a way to determine if there is enough money to cover all debts. This usually is one of the most time-consuming parts of the probate process, for which we urge you to start early.
- Distribution of Said Assets, Including the Paying of Any Debts: The final step of the probate process is the distribution of the estate assets or property, however, this can not be done before all creditors have to be paid (there is a legal order in which payments are made, and there is a list of of debts that qualify to be paid off). Once all this is done, the probate process will be deemed completed.
Who can start probate of a will?
The application may be made by the executor named in the will or by any heir, devisee, spouse, creditor, or any other persons having a property right in, or claim against, the estate. The person starting probate usually will have to “front” the money for all legal fees involved before they can be reimbursed by the estate.
How long do you have to probate a will in Texas?
A Will should be submitted for probate within four (4) years after the death of the person making the will. A Will can be probated after four (4) years, however, the person bringing the Will must explain why he or she did not offer the Will in a timely manner so that they will not be deemed to be in default.
Must the executor use the decedent’s attorney that drafted the Will?
No, there is no requirement that the attorney who drafted the Will needs to be the attorney who probates the will.
The executor is free to hire the attorney of his or her choice. If the drafting attorney still has possession of the original will and refuses to release it to the executor, Law Offices of GP Schoemakers, PLLC can file a motion with the probate court compelling the drafting attorney to surrender the will to the court.
PROBATE WITHOUT A WILL
Probate, or estate administration, is the broad term that is used for a variety of procedures to gather a decedent’s assets, pay their debts/creditors and transfer property to their beneficiaries or heirs.
Who can initiate probate proceedings?
The application may be made by the executor named in the will or by any heir, devisee, spouse, creditor, or any other persons having a property right in, or claim against, the estate.
What happens when a person dies without a will?
If there is no will, someone is said to have died “intestate”. Texas has default inheritance rules in place for such an occurrence. See Texas Estates Code Chapter 201.
THE PROBATE PROCESS
Call or contact us today to learn more about the probate process in your situation. We aim to make it easy for you to reach out for an initial consultation with our probate lawyer to consider your probate options.
NOTE: Under Texas law, people applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney. Only licensed attorneys may represent someone else’s interests. Self-represented applicants may proceed in court only if they are really representing themselves alone.