When a person dies their estate must be settled. An estate sounds like a fancy word, but it simply means all of their assets. In laymen’s terms, this is “everything they own.”
The process of settling an estate against any outstanding liabilities is called probating. This leads to the common question of how to probate a will in Texas.
The big picture idea involved is this. If a deceased person did not clearly or adequately define how to manage their estate after they passed, court supervision will be required to oversee this process.
The courts will first look for legal documents to decide if formal probate is necessary, and if so, proceed accordingly. The length of time that probate takes in Texas will depend upon some factors we discuss below.
How to Probate a Will in Texas: The Process Depends on Preparedness
People have varying degrees of preparedness at the time of their passing. In some cases, such passing is sudden and untimely. In other cases of longevity, people simply put off this crucial planning. After all, who wants to think about dying?
If you’re married, it’s worth talking with an experienced estate planning lawyer to avoid some of the challenges we will soon discuss related to Texas probate. But this article is not about the need to prepare, per se.
If you’re reading about the probate process, there is a likelihood you simply need to survey the landscape and learn how to best proceed in your present circumstances.
This post will guide you on the matters of probate estate, heirship, guardianship, surviving spouse, and how a deceased person’s assets will be administrated. However, it’s no substitute for specific and hands-on legal advice. If you need such advice, get in touch with us.
Texas Probate Scenario A: They Had a Living Trust
This is the best case scenario when it comes to probate, specifically in Texas. A trust is like a legal envelope that holds the deceased person’s assets, clearly establishing heirship, and the rules dictating the timing of such transfers.
Since their is a trustee involved and beneficiary designation was made clear, no probate proceeding is required. This is because the issue of ownership has already been settled.
The assets are owned by the trust, but managed by the individual who just passed away. This event now triggers a trustee to oversee the decedent’s assets.
The trustee is simply the legally responsible personal representative who was established by the trust attorney to administer these affairs. According to Texas estates code, no county court is required.
Q: Can a living trust help you avoid probate in Texas?
A: Yes. This is why trusts are an essential planning tool once people understand how they function. They don’t belong to only the privileged or ultra-wealthy, and can help you avoid probate proceedings in the event of a person’s death.
Texas Probate Scenario B: They Had a Will
The next best thing besides a living trust is a will. The function of a will is for beneficiary designation of the assets establishing clarity for each heir. A will can also establish and designate guardianship of minors and children.
In a sense, an experienced probate attorney may refer to a will as a “roadmap” for probating the testator’s estate.
Q: Do you still have to go to probate if there is a will?
A: Yes. Having a will makes the probate process much easier on each named beneficiary. But estate assets are still required to pass through probate while the will is examined.
In Texas, an executor is given 4 years from when the person that drafted the will passed away to file for probate. If such time elapses and the executor fails to file the will, the estate’s assets will be distributed. The distribution takes place in line with the laws of intestacy. It will be assumed that there is no will.
This is why it is so helpful if your loved one dies without a clear and concise will in place.
Texas Probate Scenario C: There is a Surviving Spouse
A common scenario is when one spousal partner passes but is survived by the other. While probate is still be required whether a will is in place or not, the process is typically easier due to joint survivorship.
It’s common for assets such as houses, vehicles, investment accounts, and bank accounts to be held jointly. Going beyond joint account status, having a payable upon death (POD) document signed and on file with each company or entity is also very helpful. This will make for an easy transition for the surviving spouse.
In Texas, any property that is owned in what is called joint tenancy will automatically pass along to the surviving owners (here the spouse) when the other owner dies.
Texas Probate Scenario D: No Planning or Little Documentation was Done
There are other cases where little to no planning was done prior to death. Legal documents weren’t signed, and properties weren’t jointly held designating a clear survivorship right. Potential beneficiaries, as well as creditors, are left to sort out the situation.
This is where a Texas probate court will step in to distribute the property of the deceased based on Texas probate law, according to how they see fit.
How to Probate a Will in Texas: The Process
The Texas probate process involves a court officially recognizing the death of a person and overseeing how their debts are paid and their assets distributed.
The role of the probate courts in Texas is to ensure the process is smooth and fair. The court attempts to do this while protecting the interests of any beneficiary or creditor involved.
The court carries out probate administration and hires other qualified persons to help facilitate the process.
How Long Does it Take to Probate a Will in Texas?
If the case involves a simple or small estate, the probate court can conclude the process within six months. But there are cases where it can last for more than 12 months should the original will be contested or missing. These issues will complicate the process, and will require more time because the court will become even more involved.
Having a Texas probate attorney by your side during this process is recommended because the experience can be stressful. If a previous divorce was also in play, it’s essential.
The Steps Involved When Probating a Will in Texas
Here are the steps in how to probate a will in Texas, and how long it may take:
A probate application must be filed in the residential county of the decedent at a Texas probate court.
On filing the probate application, you’ll have to wait about 2 weeks before your application qualifies for a hearing. A notice will be posted by the county clerk within this period at the courthouse.
The notice will state that a probate application filing was done to notify interested parties who might want to contest the estate administration or the will. On receiving no contest, the Texas probate court then opens the administration.
3. Validating the will
At the end of the waiting period, a hearing will be presided over by a judge. The judge will recognize the death of the decedent legally. The judge will also verify whether or not there was a valid will before appointing an administrator or verifying the executor.
4. Cataloging assets
Once the naming of the estate administrator or executor is done, the person is expected to catalog all the assets of the estate and get back to the county clerk within 3 months from the date of appointment. They are expected to come up with an Inventory, Appraisement, as well as List of Claims. They must also swear that they have accurately done their duty.
5. Identify beneficiaries
If a valid will was left behind by the decedent, the beneficiaries will be notified by the executor. But in the absence of a will, the Texas probate court has the responsibility of determining heirship. This process can be challenging.
By seeking the assistance of a Texas probate attorney, all interested parties can begin proceedings before the court to decide heirship. This will be done in the county where the property is located. The application must be signed by all heirs.
If by chance some heirs are not known, the court requires the posting of notices at the courthouse and in newspapers. It is expected that applicants be able to prove that the application details are true. Testimony may also be required in written and oral forms.
6. Notify creditors
It is normal for the decedent to have incurred some debts while alive. Some portion of the estate will be used to resolve these debts. This comprises debts like household expenses, as well as mortgages and medical bills. Notifications are then sent to the creditors by the executor of the estate, giving them the chance to file a claim against the estate. To do this legally in Texas, the notice to creditors has to appear in a local newspaper.
7. Disputes resolution
So long as the will is still being contested by beneficiaries like family members, or if certain grievances are filed, there can be no resolution. For the estate to be finalized, all disputes must go before a judge at a probate court in Texas.
Contested Wills in Probate
This situation is not uncommon when probating a last will and testament in Texas, or anywhere for that matter. This is because of the emotional side of things which can lead to a potential conflict between family members.
The contesting party has 2 years from the original probate to contest a will. Working with a Texas probate lawyer can help you with the guidance and direction you need to get through a dispute regardless of who the complainant is.
The contesting party is expected to prove that something is not correct about the will or that it is invalid. They must prove that the will was either forged, influenced by a 3rd party, not executed properly, or that multiple wills were executed.
Mediation usually helps to resolve a Texas probate conflict without having to go to court. Families and attorneys can come together to reach an out-of-court settlement.
8. Distribution of assets signifies the conclusion of the Texas probate
Once every dispute and debt is resolved, the beneficiaries then receive the remaining assets. The main assets in question are often real estate. This is one reason why people need to learn what a lady bird deed is, because they are common in Texas, and can be helpful.
Need Help Navigating the Probate Process in Texas?
As you can see, there are a variety of scenarios one might face when trying to understand Texas law as it relates to the legal process.
Take steps to secure the future of your family and loved ones by contacting us today. You will receive a free consultation for establishing good planning of your own.
If you are trying to navigate the waters on behalf of a loved one who recently passed, we can advise you on the best direction to take.
We are here to help you with all of your estate planning needs.
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