Probating a Will in Texas
When a person dies and leaves property that has not been transferred to another person, then that property will be distributed through the probate process. Probate is the legal process in which a court oversees the payment of the deceased person’s debts and then distributes their remaining assets.
In Texas, the executor of a will has four years from death to file for probate. If the executor fails to file the will within the required time, then the laws of intestacy take effect, and determine how the estate’s assets are distributed.
It can take several months to probate an estate. It is a good idea for the testator (person who drafted the will) to leave certain assets for the support of their family that do not have to be probated., such as insurance policies, retirement accounts, and profit sharing. These assets are transferred directly from the organization holding them to the beneficiary who is named on the account.
The probate process in Texas can be dependent administration or independent administration. Independent administration is the easier process and accounts for approximately 80 percent of estates probated in Texas. Texas law allows the person making the will to indicate in the will that it should be probated using independent administration.
Most probate cases are three to six months in length, but can take longer if a dispute arises.
Steps of Probating a Will in Texas
File an application for probate in the county in where the decedent resided.
The county clerk will post notice at the courthouse stating that a probate application was filed. This is how parties are notified of the will so that they may contest the will or administration of the estate.
The probate court will hold a hearing to legally recognize the decedent’s death, verify that the decedent had a valid will, and appoint an administrator or verify the person named as executor. The executor must prepare an inventory, appraisement, and list of claims. The inventory lists the estates property. If there are no unpaid debts owed by the estate, except for secured debts, taxes, and administration expenses, and if the will states that an inventory is not required, then the executor may file an affidavit In Lieu Of Inventory with the county clerk. This process simplifies probate and protects the decedent’s privacy.
If there is a valid will then the beneficiaries are notified of the estate. If there is no will then the court will determine heirship.
Creditors, if any, must also be notified. The decedent’s debts are usually paid by the estate. The creditors are given an opportunity to file claims against the estate.
Before the estate is finalized, any disputes regarding the will must be resolved. These contested matters are heard by the probate court judge. The person contesting the will must prove that there is something wrong with the will.
After the debts are paid and disputes are resolved, the assets of the estate are then distributed to the beneficiaries.
Is Probate Always Necessary?
Some assets can be transferred from a person’s estate to family members without the probate process. These include:
- Life insurance policies that name beneficiaries
- Joint tenancy property or real estate with a joint right of survivorship
- Community property with a joint right of survivorship
- Bank accounts that are payable-on-death
- Annuity with survivor benefits
Muniment of Title Muniment of title is an inexpensive and simple process to transfer and divide estates assets when there is a will. It is available when there is a valid will, the decedent has no unpaid debts, except involving a homestead or other exempt property, and there is no Medicaid claim associated with the estate. This process is unique to wills in Texas. It is a efficient process that avoids the usual administration of a will.