Probate

Probate is the process where a court confirms death and determines who has the authority to collect assets of the estate of the deceased, pay creditors of the estate and distribute the assets of the estate either under the terms of a valid will or under law if there is no will.

No. Beneficiary designations (i.e., naming a beneficiary of your retirement account, life insurance policy, bank accounts, etc.) supersede probate. Also, if you have a joint account with right of survivorship, then probate is avoided as to that account.

You should probate if the deceased spouse had children from a different relationship. If there are no debts and the will is consistent with the laws of intestacy, then probate can sometimes be avoided. Furthermore, sometimes titling of the deed (i.e., subject to survivorship agreement) or vehicle designation can supersede probate. A trust also avoids probate. There are many other exceptions.

If the deceased had a will, usually the person named as Executor files an application for probate. If there is no will, typically an heir will make an application to determine the heirs and the court will appoint an additional attorney to investigate and report to the court to determine the heirs.

Generally, four (4) years from the date of death. There are some exceptions (i.e., will not found until after four (4) years), but if the will is probated after four (4) years it may only be probated as a muniment of title under Texas law. If the will is not probated, property could pass by the laws of intestacy instead of the will.

If there are no debts or other need for an executor, the court can issue an order so that the will is determined valid and property can be distributed directly to the beneficiary or beneficiaries. Since probate as a muniment of title is something unique to Texas, often out-of-state financial institutions must be given an explanation.

Typically, if assets such as stocks, bonds, investment accounts are in an individual account of the deceased (with no beneficiary designation), the financial institution (or title company if real estate is owned by the deceased) will require Letters Testamentary to show that the court has authorized the Executor to act on behalf of the estate to gather and transfer the assets. The Executor would also have the authority to deal with taxing authorities and to reimburse for those who advanced funeral expenses, last illness expenses, etc. If there is no valid will and heirs can agree, an Independent Administrator can be appointed by the Court and Letters of Administration can be granted so that the Administrator can act on behalf of the estate. If there is no agreement between the heirs on who can act on behalf of the estate, then the Court would have a Dependent Administration and the court would oversee payment of bills, whether property could be sold, require an annual accounting, etc.

Under Texas law, if the assets of the estate are under $75,000, then the heirs and two (2) disinterested witnesses could sign and submit a Small Estates Affidavit without the necessity of going to court (although the Affidavit would be filed with the Court) and having to go through the process of probate. This is useful in situations when there is no will and there are little or no debts.

Since an executor has a duty to beneficiaries and creditors, the courts usually require an executor be represented by an attorney.

The original will (if located), death certificate, statements of all accounts, beneficiary designations, deeds, life insurance policies, stocks, bonds, car titles, boat titles, and some courts request driver’s license and Social Security information.

It depends on several questions – Will the Last Will be contested? Are there creditor claims that will be contested? How long will it take to be in control or collect assets belonging to the estate? However, generally if these are not a problem, the process often takes less than six (6) months.

Uncontested wills can often be probated by Zoom or teleconference (varies by court) due to a temporary order issued by the governor. As a result, at the present you don’t have to physically go to court! However, during the pandemic, the court process to post notice of citation of a hearing, to set a hearing, or to receive letters testamentary, etc., is often longer.