In the days and weeks following the death of a loved one, there are many emotions we often experience, chief among them being grief, sadness. Unfortunately during this time, many people will also experience frustration and confusion when it comes to clearing up issues of the loved one’s estate.
As Texas probate attorneys, we see this situation all too often. We make it our goal to help clients learn how to get a will probated in Texas and take away that confusion and frustration, so that you can focus on mourning the loss of your loved one. To this end, what follows is a detailed accounting of the legal process, definitions of the different terms you might encounter, explanations of the different types of estate administrations and more.
What Exactly Is Probate?
Probate is the process by which a court legally recognizes a person’s death and authorizes the administration of his or her estate. This process typically must be completed whether the person has died with a Last Will and Testament in place, or whether no will existed.
As you go through the process of probating wills in Texas, there are many legal terms that might be unfamiliar or unclear to you. These include:
Decedent: When probating a will in Texas, you will likely encounter the term “decedent” often. This is the legal term for the person who has died and whose estate is in the probate process.
Will: This is the legal document in which a decedent has outlined how he or she would like assets distributed among their loved ones.
Estate: In the state of Texas, an estate consists of all the decedent’s assets. These include, but aren’t limited to, cash, real estate holdings (homes, land, etc.), stocks and bonds, life insurance policies, retirement accounts, vehicles and personal belongings.
Beneficiaries: These are the loved ones named in a will, or determined by the court if there is no will, who will receive assets from the decedent’s estate.
Executor: When a person dies with a valid will in place, the document typically names a person to serve as Executor of the Estate. The chief duties of the Executor will be to inventory and catalogue the decedent’s assets; pay debts of the estate; pay taxes of the estate; file lawsuits for claims owed to the estate; and distribute assets from the estate to the beneficiaries as named in the decedent’s Last Will and Testament.
Administrator: When the decedent has passed on without leaving a valid will and no Executor has been named, Texas law requires that an administrator be named to carry out the duties of an Executor.
What Are The Different Ways To Probate A Will In Texas?
Before outlining the steps of how to probate a will in Texas, it’s important to understand the distinction between the different types of probate. There are several.
Independent Administration: This process is the usual route when a decedent had a valid will, which named an Executor for the Estate. With an Independent Administration, the Executor has more freedom to carry out his or her duties without strict oversight by a probate court. With this type of probate, another key distinction is that the Executor is not required to post a bond, or insurance policy, for the estate.
Dependent Administration: When someone has died without a will, Texas probate law typically requires that the estate fall under a stricter oversight by the court known as Dependent Administration. The administrator is required to post a surety bond, seek court approval for every step in the process of distributing an estate, as well as filing detailed reports every year with a Texas probate court regarding the estate.
Muniment of Title: Another process by which you can probate a will in Texas is the relatively inexpensive and simple process known as Muniment of Title. This process can be utilized when a valid will exists, the estate has no debts except secured real estate, and Medicaid has no claims against the estate to recover benefits the decedent may have received.
With Muniment of Title, the court must determine that there’s no need for a probate administration and admit the will into probate as a muniment (or evidence) of title to the assets of the estate. No Executor is appointed, but the person who request the Muniment of Title must file a sworn statement with the court within six months verifying that the terms of the will have been carried out.
Small Estate Affidavit: When a decedent had no will and the value of his or her estate is $50,000 or less, the beneficiaries of the estate can file a Small Estate Affidavit (sworn statement) to collect the property without going through the probate process.
How To Probate A Will In Texas: A Step-by-Step Guide
With all of this information at hand, it will be much easier to understand the typical process of how to probate a will in Texas. The steps are as follows:
- Step 1: Filing With The Court. The process is actually fairly easy to start. Whether a will is present or not, an application for probate must be filed with the proper Texas probate court in the county where the decedent resided.
- Step 2: Posting Notice of Probate Administration. After the probate application is filed, there will be approximately a two week waiting period before a hearing is held for the application. During this time, the County Clerk will post a notice at the courthouse stating that a probate application was filed to serve as notice to anyone who may contest the will or administration of the estate. If no contests are received, the probate court proceeds in opening the administration.
- Step 3: Validating the Will: After the waiting period, a hearing will be presided over by a Texas probate judge. He will legally recognize the decedent’s death and the jurisdiction of the court over the case; verify that the decedent had a valid will or that there was no will; and appoint an administrator or verify the person named as Executor.
- Step 4: Inventory of Assets: Once an Executor or administrator is officially named to the estate, that person must catalogue and report all the assets held by the estate.
- Step 5: Identifying beneficiaries: If the decedent had a valid will, the Executor will notify beneficiaries of the estate. In the event no will was filed, the probate court is charged with the task of determining heirship in Texas.
- Step 6: Notify Creditors: Most decedents leave behind debts that must be resolved out of their estate. Medical bills, mortgages, household expenses, etc. will be paid from the estate. Before they are paid, however, creditors must be notified of the decedent’s death by the estate’s Executor and given the opportunity to file claims against the estate. This can be done with a notice published in the local newspaper.
- Step 7: Resolving Disputes: If family members or other potential beneficiaries are contesting a will in Texas or file other grievances, these will be heard by a probate court judge and resolved before the estate can be finalized.
- Step 8: Distributing Assets: Once the debts and expenses of the estate are resolved and any contests of the will are cleared up, the remaining assets of the estate are then distributed to the beneficiaries.
While most people will experience the process listed above in the probate of a loved one’s estate, there are some who can avoid this process in specific circumstances. The following are considered Non Probate Assets in Texas and can be transferred to the beneficiary without probate:
- Property that is held as joint tenancy with right of survivorship;
- Community property held also with right of survivorship;
- Bank accounts that are payable on death
- Funds from life insurance policies
- Survivor benefits that come from an annuity
As you can see from the many facets of probating a will in Texas, the process is likely not something you want to experience alone. At Ostrom Morris, PLLC, we have extensive experience in helping families through this process and making it as easy as possible on you.