Frequently Asked Questions About Probate
Probate is the process by which a person’s estate is administered after they die. Having a will is the best way to ensure that you control the distribution of assets to your descendants. The will and probate process can seem complicated, time consuming, and secretive. To ease the stress of the process, Keith Morris Attorney at Law has answered the most frequently asked Texas probate questions.
“Keith and his team were fantastic.”- Thomas M.
What is a Probate?
Probate is the legal process that takes place after someone dies. If the decedent has a legal will in place, the probate court will verify the document and ensure the decedent’s wishes are followed. Without a last will and testament, the State of Texas controls the distribution of assets by the law in intestacy. Using the services of an experienced probate attorney can help your family move smoothly through probate in the weeks and months after the death of your loved one.
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 they 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.
I Have a Will. What Do I Do with It?
If your loved one has left a will, Keith Morris Attorney at Law can help you validate the will and honor their wishes. Probate is a very straightforward process, but the amount of work depends heavily on the circumstances surrounding your loved one’s estate.
What Is the Difference Between a Dependent and Independent Administration?
During probate administration, either the court handles all the affairs (dependent administration) or assigns them to an estate administrator (independent administration).
There are arguments for each style:
- Dependent administration: The court approves every sale and distribution of property and assets, as well as the payment of estate liabilities. Every step of the process is micro-managed.
- Independent administration: The court assigns an administrator to oversee the daily affairs of a decedent’s estate. This individual has the power to make all estate-related decisions and reports back to the court.
In both a dependent and independent administration, there are certain arguments, testimony, evidence, and applications that must be produced and completed in a precise manner. This vital information allows the court to make the right decisions for the decedent’s estate.
Is There a Time Limit to Probate a Will?
Texas probate law is very specific about the statute of limitations that stipulate the time limits for probating a will. There may be alternatives for wills that have expired. The statute of limitations for a will is 4 years.
Even though the statute of limitations may have expired, individuals can still request to have a Determination of Heirship or have the will admitted as Muniment of Title which allows the Texas probate court to evaluate which successors should receive distributions, and how much.
How Do You Probate a Lost Will?
It is important that the decedent’s last will and testament be provided to the court for review. However, when there is no will to submit to a Texas probate court, there is a presumption that the will was revoked by the decedent; under Texas probate standards, this is considered to be a rebuttable presumption.
Under Section 85 of the Texas Probate Code, a lost will can be admitted if the interested party can:
- Verify the contents of the will (to meet the requirements of verifying the contents of the will, witnesses can prove its existence if they had heard, read, or can identify a copy of the will)
- Satisfy the court as to why the will cannot be produced and prove that a will is in existence and in force
Keeping a Will Safe
There are some steps that you can take to keep a final will and testament stored and safe to avoid losing the document. First, consider storing the will in a safe location, like a bank vault. Safety deposit boxes are good locations away from the home that provide security to a will.
A second option is to store the document in your home, filed away or in a protected home location. Fireproof boxes and gun vaults are two possible locations. Finally, your attorney can keep the document. An attorney is obligated to keep your information private and is a great choice for keeping a will safe and secure.
How Do I Get a Will Probated in Texas?
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.
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 their 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, and file 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 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 would 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.
Do I Have to Use an Attorney to Probate a Will in Texas?
Many heirs wonder if they will need an attorney to probate a will in Texas. The process is often new and unknown to first-time heirs. Under the Texas probate state law, an attorney is not required to probate a will. However, it is important to note that a probate proceeding is a very detailed process that requires extensive knowledge of the law. For this reason, many people choose to obtain the services of an attorney.
Benefits of Having a Probate Attorney
Interested parties that are looking to have a will probated in Texas should consider hiring an attorney. The benefits of using anattorneyinclude:
- Making all required appearances in court to discuss the estate with the judge
- Filing all required Texas probate applications with the court, which includes: The application to probate a will, orders required to admit the will to probate, the inventory, appraisement and list of claims, and the application to establish an allowance for family members
- Cataloging and appraising all estate assets so that a proper value can be established
- Preparing and sending out notices to the creditors of the estate, which includes putting the notice in several newspapers for public reference
- Making arguments to the courts when necessary
Without help from an attorney to probate a will in Texas, you would be responsible for all of these tasks, as well as having to manage your daily personal commitments.
On What Basis Can I Contest a Will?
According to Texas Probate Code Section 93, an interested party can legally dispute a will’s validity by filing a formal lawsuit. Under the code, an individual only has 2 years to contest a will. In this particular situation, the clock begins to run towards the statute of limitations after the will has been admitted into probate.
There are four main reasons why an interested party would want to contest a Texas will:
Lack of Testamentary Capacity
Testamentary capacity is the legal term describing a person’s legal ability to make or alter a valid will. Testamentary capacity becomes an issue when someone claims that the testator — the person who made the will — did not understand what was happening.
Examples of this include:
- The testator did not understand they were signing a will
- No comprehension of what property is being willed away
- No comprehension of who is receiving the property
Undue influence is exactly as it sounds — someone placing influence on the will maker and inappropriately swaying the decisions of the will maker. Undue influence is tested by examining if the testator made a will different than they normally would have. Undue influence in estate planning can be difficult to prove because the will maker is often unavailable to be in court answering questions concerning influences during the will-making process.
Execution of a will takes place when the creator signs the document. There are specific steps and formalities that must occur under Texas law. If these are not followed, lack of due execution is a reason to contest a will in Texas. Lack of a witness or a missing signature are examples of missed steps in the will execution process.
Other Noncompliance Issues
Wills can be complex legal documents. The depth of the assets can further complicate a will, along with the number of heirs and size of the assets. There are many intricacies to a will in Texas, and an experienced legal team can dissect a will for all the proper legal characteristics.
When Is Probating a Will in Texas Not Necessary?
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.
- 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
Can I Remove an Executor in Texas?
An executor is the person named to manage the estate of a person who has died. The executor is responsible for several tasks, including:
- Taking an inventory of estate assets
- Paying debts for the estate
- Recovering money owed to the estate
- Distributing assets to beneficiaries
The person named executor of an estate has a fiduciary duty to act in the best interest of the estate’s beneficiaries. When the executor doesn’t do act in good faith, the heirs of the estate have a legal right to take action.
Reasons for Removing an Executor
There are several circumstances in which an executor can be removed. If the executor:
- Fails to file inventory within 90 days of receiving letters testamentary
- Fails to provide proper accounting
- Misappropriates funds from the estate
- Mismanages estate assets
- Has a conflict of interest in managing the estate
Executors are largely unsupervised by Texas probate courts. For the most part, this works as a benefit to the heirs of the estate. It means the probate process is faster and cheaper. However, this lack of oversight also makes it easier for an unfit executor to misuse the position.
If it’s suspected that an executor has breached fiduciary duty, one of the first options is to file a request with the probate court to get any motions, applications, or other pleadings filed in regard to the estate. There may be fees associated with this filing, so it’s important to check with the court handling the probate proceeding.
If it has been 15 months or longer since the appointment of executor, the next step may be requesting an accounting of the estate. This means the executor will need to report to all those who have an interest in the estate (heirs) details such as what debts have been paid, what property has been distributed, what property is still in possession of the executor, and other information about the condition of the estate.
This accounting often answers most questions that an heir might have about how the executor is handling his duties. If it does not, or if the information indicates a breach of fiduciary duty, then the heirs should get legal help.
What Happens in a Texas Probate Hearing?
Probate is the process by which a court legally recognizes a person’s death and authorizes the administration of their estate. It begins by going to the probate court serving the county in which the decedent lived and filing a petition for the court to admit a will to probate and appoint an executor, or, if there is no will, appoint an estate administrator.
After the probate application is filed, there will be a two-week waiting period before the hearing is scheduled. During this time, the County Clerk will post what is called a Notice of Probate Administration, announcing that a probate application has been filed to any persons who may wish to contest the will or administration of the estate. If no challenges are received, a hearing is scheduled.
What to Expect at a Texas County Probate Court Hearing
The proceedings begin just like in any other court — you are sworn in and will be giving testimony, under oath, to the court. According to Texas law, an applicant must prove to the court’s satisfaction that:
- The testator is dead
- Four years have not elapsed since the date of the testator’s death and before the application
- The court has jurisdiction and venue over the estate
- Citation has been served and returned in the manner and for the period required by this title
- The person for whom letters testamentary or of administration are sought is entitled by law to the letters and is not disqualified
If the county probate judge accepts your testimony and evidence, the court will order that the will be admitted to probate.
Sign the Oath
After the ruling, you will be expected to sign several documents, including the “Oath,” in which you promise to fulfill the obligations required by law of the executor or administrator of an estate (these are documents that can be prepared by your attorney before the hearing but must be signed in open court). After you have signed this oath, the judge will issue Letters Testamentary, which state that you are the legal executor of the estate and have the authority to act as such.
After you have been named administrator or executor, the judge will require you to perform certain tasks:
- You will have 90 days to file an inventory, appraisement, and list of claims pertaining to the estate
- You will also have to gather the assets of the estate and distribute them according to the terms of the will
- You will execute the directions of the testator as contained in the will
How Does Divorce Impact a Will?
Every now and then, a will needs to be updated. Reviewing your will every year to make sure it’s still in line with your wishes isn’t a bad idea.
Otherwise, the following big life changes should be reflected in your will:
- Birth or death of an heir
- Major investment adjustments
- Real estate sales or purchases
- Relationship changes, such as divorce
Texas Laws on Divorce and Wills
In Texas, if an individual dies and the ex-spouse is still named as a beneficiary in the will, the ex-spouse is considered “predeceased.” This means the law treats the ex-spouse as if they had died before you, and they are no longer eligible to receive any of the estate as stated in the will.
So, if you named your ex-spouse as the executor of your will and a beneficiary but then divorced, contingent beneficiaries or alternative executors and trustees will be called to act on behalf of your estate.
When You Want an Ex-Spouse to Inherit
However, there are situations where you are still close with your ex-spouse, or otherwise still wish for them to inherit your estate. Some believe just by leaving the will the way it is, their ex-spouse will still inherit their estate. However, this is NOT true in Texas. When an individual has a lawful dissolution of marriage, the named ex-spouse on a will cannot inherit.
So, how do you allow an ex-spouse to inherit? The will must be changed to reflect your ex-spouse in their new relation to you, rather than as your husband or wife. Then, they will be able to inherit your estate.
There are some exceptions to Texas law of omitting an ex-spouse from a will. Any life insurance policies or retirement benefits are not affected by this law and will still go to the ex-spouse unless changed. These designations must be changed or revoked in the individual accounts, assets, or plans.
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