Probate Law

Probate is the process where a court confirms death and determines who has the authority to collect assets of the estate of the deceased, pay creditors of the estate and distribute the assets of the estate either under the terms of a valid Will or under law if there is no Will.

It can take as little as two weeks to have a will admitted to probate. Afterward, the process involves collecting assets, paying debts, and distributing the remaining property to the beneficiaries named in the will. A final tax return must be filed when due, and any taxes owed must be paid. The duration of the entire process depends on several factors, such as the complexity of the assets, whether the will is contested, if there are disputed creditor claims, and how long it takes to gather or take control of the estate’s assets. However, if there are no significant issues, the probate process typically takes less than six months.

Whether or not probate is necessary depends on the type of assets and how they are titled (i.e., in whose name the assets are held). Some examples of assets that can bypass the probate process include:

• Beneficiary Designations: Assets like retirement accounts, life insurance policies, and certain bank accounts where you’ve named a beneficiary will pass directly to that person upon your death, regardless of what your will says. These assets do not go through probate.
• Joint Accounts with Right of Survivorship: If you own property or bank accounts jointly with someone and have a right of survivorship, the surviving co-owner will automatically inherit the asset upon your death, bypassing probate.

In these cases, the assets pass directly to the designated beneficiary or joint owner, avoiding the probate process. However, other assets that are solely in your name and not covered by a beneficiary designation or joint ownership will typically go through probate according to the terms of your will or through intestacy.

Generally, you have four (4) years from the date of death to probate a will. There are exceptions, such as if the will is not discovered until after the four-year period. However, if the will is probated after this time frame, it may only be admitted to probate as a muniment of title under Texas law.

If you pass away without a Will, Texas intestacy laws will govern the distribution of your estate. This means the state of Texas will decide how your assets are divided, potentially in a manner that does not reflect your desires. Having a Will in place ensures that your assets are distributed according to your wishes.

Probate options when someone passes away with a Will include:

• Small Estate Affidavit
• Determination of Heirship
• Court-Created Independent Administration
• Dependent Administration
• Affidavit of Heirship

The most appropriate probate option will depend on various factors, such as the size of the estate and the debts owed by the estate. Each option offers different processes and requirements to ensure proper distribution of the deceased’s assets.

An executor is the individual you designate in your Will to manage the administration of your estate following your death. The role of an executor is threefold: (1) to identify and gather all assets within the estate; (2) to settle any outstanding debts or liabilities; and (3) to distribute the remaining assets in accordance with the instructions outlined in your Will.

Letters Testamentary are court-issued documents that grant the Executor named in a valid will the authority to manage the decedent’s estate. Financial institutions, such as those holding stocks, bonds, or investment accounts, as well as title companies for real estate, typically require these letters to verify that the Executor is legally authorized to collect and transfer assets from the estate. The Executor is also empowered to handle estate-related matters, including dealing with taxing authorities and reimbursing funeral or medical expenses. If there is no valid will, and the heirs reach an agreement, the court may appoint an Administrator and issue Letters of Administration, granting the Administrator the same authority to act on behalf of the estate.

Visit the Resource Center and discover our Probate Guidebook, an essential resource crafted to offer valuable insights on understanding the Texas probate system. Equip yourself with the knowledge necessary to better understand the complexities of probate with confidence and clarity.