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Probate: What is it and do I need to do it?

Texas Probate Pros is the leading botique law firm for Wills, Estate Planning, and Probate matters.  We know the time after a loved one dies is very difficult.  We’ve been through it too.  Our probate attorneys are here to guide you through the Texas Probate Process.

Probate is the legal process of gathering a deceased person’s assets and distributing them to the heirs.  A person’s will provides instructions on how to distribute the assets.  However, the executor of the estate cannot immediately do what the will says.  The legal process must be followed.

The executor will first need to prove that the will is valid through the probate process.  It involves both authenticating the will and approving the executor.  

That is all great, but you may wonder if all wills have to go through the probate process in Texas.  That is a great question and we will answer it.

The Probate Process by Texas Probate Pros

Am I Required to Probate a Will in Texas?

There is no general requirement that all wills go through probate in Texas.  However, if the decedent dies and leaves a will, you can only implement its provisions through probate.

If the decedent did not title or structure his or her property in such a way to avoid probae, then there is no way for the beneficiaries to receive their inheritance without probate.  To administer the estate, you have to go through the probate process to transfer probate assets.  That would include any property owned solely in the decedent’s name that does not have any short of beneficiary designatation.

When is an Estate Exempt from the Probate Process?

In some circumstances, an estate may be exempt from the probate process.  Texas Estates Code, Title 2, Chapter 205 states that an estate is not required to go through the probate process fi there is no will and the total value of the estate (not counting any homestead real estate owned by the Decedent) is $75,000 or less.  If these criteria are satisfied, then the people who are to inherit the property can file an affidavit with the court to collect the property after 30 days have passed since the decedent’s death.

Types of Property Exempt from Probate

In addition to circumstances when an estate can bypass the probate process entirely, there are alos times when assets held in an estate can be transferred to the new owner (beneficiary) without having the assets pass through probate.  For example, assets can be transferred without probate when:

  • The asset is community property with the right of survivorship;
  • The asset is held in joint tenancy, such as a home where two people’s names are on the deed;
  • Payable-on-death (POD) bank accounts;
  • Proceeds and benefits that are payable via a life insurance policy; and
  • payments from a survivor annuity.

Additionally, while assets that are named in a will must go through probate, the probate process involves the court reviewing a will and ensuring that it is valid…Any assets that are held in a trust are exempt from the probate process.

Probating a Will in Texas

Texas has its own probate laws which are part of the Texas Estates Code.  This coude outlines the steps needed to probate a will in Texas.

If you are named as the executor of an estate (which means that someone named you in their will to manage their estate), the following steps are necessary to complete the Texas Probate Process:

  1. Submit the Will and file for probate.  First, you will submit the will to the deceased’s county court and file a petition (or request) for probate.  You will need to do this within four (4) years of the person’s death.
  2. Post a Public Notice.  The county clerk will then post a public notice announcing the petition.  This gives potential heirs the chance to contest (or challenge) the will.  The will typically leave this notice up for two weeks.
  3. Verify the will.  If nobody challenges thw will, the county court will confirm that the will is valid and officially give you the legal authority to act as executor and begin sttling the estate.
  4. Inventory the Assets.  You will have 90 days to inventory the deceased’s assets and submit this information to the court.  This includes determining their value and identifying any debt or taxes that may need to be paid.
  5. Contact beneficiaries.  At this point, you will need to notify the deceased’s beneficiaries.  These are the people and organizations named in thw will to receive estate assets.  If no beneficiaries are listed, Texas state law will determine who will inherit the assets.
  6. Notify creditors.  If the deceased had any debt, you will need to contact the creditors and give them a chance to file a claim.
  7. Pay debts.  You will use funds from the estate to pay all debts, bills, and required taxes.
  8. Distribute Assets.  You will then distribute all remaining assets to the beneficiaries.
  9. Close the estate.  Finally, you will attend a hearing and ask the court to close out the estate.  This ends the probate process.

Is there a simplified probate process?  Maybe.

Some Texas estates qualify for a simplified version of probate called a “muniment of title.”

A muniment of title is a way to probate a will by transferrig assets directly to beneficiaries, without having to go through the full administration process.  It can take as little as 30 days to complete this type of probate, saving your loved ones time an deffort.  This process is only available in Texas, and generally works best for small, simple estates.

An estate qualifies for a muniment of title in Texas if it doesn’t require administration.  This means that:

  • There is a valid will;
  • There is no debt, other than a mortgage;
  • The decedent never filed a claim for Medicaid benefits.

If there is any reason to administer the estate — for example, if there is no valid will, if someone contests the will, or if you had debt, like credit card or hospital bills–then the estate must go through the full Texas probate process.

To get a muniment of title, an interested party (generally one of your beneficiaries) must submit an application to your county court within four (4) years of the decedent’s death.  The interested party will attend a hearing, and a judge will review the request.

If approved, the court will issue a muniment of title document, which proves the beneficiaries now own the estate assets.  If denied, the estate will need to go through the general Texas probate process.

Do I Need a Probate Attorney in Texas?

Many Texas courts (Bexar County, Dallas County, Denton County, Galveston County, Harris County, Hood County, and Travis County) do require executors to have counsel when representing the interests of others.

Because an executor represents an estate’s beneficiaries, probate courts typically require executors to be represented by a licensed attorney.

Texas Probate Pros Fees for the Probate Process

When we have a good idea of the difficulty of a probate case, we prefer to work on a fixed fee basis, however that fee is difficult to determine without knowing the complexity of your individual case.  After our initial conversation, our probate attorneys will have a good idea of the difficulty of the case.

How Long Does the Probate Process Take to Complete?

Each probate proceeding is different, so there is no way to estimate the time to complete the process.  The more complex the estate, the longer probate takes.

The time frame ranges from a few months to several years.  However, a Probate attorney at Texas Probate Pros can expeditat the process by ensuring documents are complete and filed on time.

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