Probate in Texas
Probate is the process of legally recognizing a person’s death, and overseeing the payment of debts and distribution of their estate and assets to another person or persons. People who will receive property and assets will receive them by way of a trust, joint ownership, or by direct payment of beneficiaries. Beneficiaries are the loved ones named in the will or by the court in the case there is no will, and typically receive payments from the decedent’s (the person who is deceased) insurance policies or retirement accounts.
If the decedent has a drafted will, the executor named in the will typically proceeds with filing for probate. In the state of Texas, local and state courts oversee time periods and other procedural steps in probating a will. In Texas, the executor has four years from the date of death to file for probate, and if the executor fails to file in this time period, the laws of intestacy will rule over how the assets will be distributed. To simply explain the laws of intestacy, this means that when the time period has passed for the executor to file for probate, the matter will be treated as if there was no will.
In Texas, probate law requires that if the decedent has any remaining debts, they will be paid off through the decedent’s assets, and none of the estate or assets can be distributed until said debts are first paid off.
The term ‘estate’ refers to everything the decedent owned at the time they died, which may include:
● Real estate
● Cash
● Personal property
● Life insurance policies and/or retirement accounts
● Investment securities
Some of the estate assets are not included in the probate process. If the decedent has named a beneficiary in their life insurance policy or retirement account, then said assets will pass through to the beneficiary outside of the probate process. Trust assets are also not part of the estate or the probate process, and the named trustee is responsible for distributing assets to beneficiaries.
Filing for probate consists of 7 steps:
1. Filing
An application must be filed with the probate court in the county where the decedent resided.
2. Posting
There is a two week waiting period after the application is filed. During this period, the county clerk posts a notice at the courthouse stating that the application was filed. The purpose of this notice is to notify anyone who may contest the will or administration of the estate, and if no contests are received, the court will proceed with opening the administration.
3. Will Validation
A hearing is held in which the death of the decedent is legally recognized. The probate judge will verify the decedent’s will is valid, or will verify if the decedent left no will. Following this, an administrator is appointed, or the person named as executor is verified.
4. Cataloging Assets
The executor or administrator named to the estate is responsible for cataloging and reporting all assets in the estate to the county clerk within 90 days after the initial appointment. The executor is expected to prepare a listed inventory, appraisal, and list of claims. The inventory must be accurate to the best of the executor’s knowledge, and must include descriptions and valuations of the assets. The executor may also file an Affidavit In Lieu of Inventory if there are no unpaid debts owed by the estate and if the will does not require the inventory to be filed. The affidavit swears that there are no unpaid debts, and that all beneficiaries have received a copy of the inventory. This exception protects the decedent’s privacy, as well as prevents their assets from appearing on public records.
5. Identifying Beneficiaries
If the decedent had a verified will, the executor will notify any and all beneficiaries. This step becomes more complicated if the decedent did not have a will, as the probate court must determine heirship of the estate and assets. Any parties represented by a probate attorney, including creditors and qualified representatives of the deceased, that are interested in the estate can file a proceeding before the court in the county where the property is located to determine heirship. Heirs are required to sign the application, and applicants are required to prove the truth of the application, which may include written and oral testimony.
6. Notifying Creditors
It is common for decedents to leave behind debts, which typically include medical debts, mortgages, and other household expenses. These are to be paid from the estate, and the executor is responsible for notifying creditors of the decedent’s death.
7. Distributing assets
Once debts are resolved and there are no disputes, the remaining assets are distributed to the beneficiaries.
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