Probate is the process by which a person’s property and debts are handled after their death. In large counties, these matters are handled by specialized Probate Courts. Usually, an estate will be probated in the county where the deceased person (“decedent”) resided at his time of death.
The probate process starts with the filing of an application. Along with the application, the original of the Will (if there is one) has to be filed. A copy can be used if the original cannot be located. After the statutory waiting period, a hearing is held before the probate judge. At that hearing, the Court will determine the validity of the Will, and if the person named executor in the Will is qualified to serve. If the Will is admitted to probate, the Court will appoint an Executor and issue Letters Testamentary to the Executor. The Executor will identify and collect the estate property. The Executor will also identify any creditors the deceased person owed. Within 90 days of the appointment of the Executor, an inventory of the estate must be filed, unless it was waived by the Court. After the creditors have been paid, the final step for the executor is to distribute the assets to the beneficiaries named in the Will.
The first step in the process is to determine whether the decedent had a valid Will. The next step is to determine if the decedent left a surviving spouse or minor child, as Texas law offers them certain protections, regardless of whether there is a Will. If the decedent had no Will, he died “intestate,” and the State of Texas determines by law how the estate will be distributed. The Court will need the information to identify the decedent’s legal heirs.
Most Wills designate one person to administer the estate: this person is the Executor or Personal Representative. If the Will does not designate an Executor, or the named person declines or is unable to serve, the beneficiaries may collectively agree to one Personal Representative to be approved by the Court.
If the decedent died intestate (without a Will), the Court will appoint a Personal Representative, called the Administrator, who typically has the same rights and duties as a named Executor. A Court-appointed Administrator is likely to be the surviving spouse or next of kin.
If probating the Will is necessary, an Application to Admit Will to Probate should be filed with the Court. A short hearing will be held, during which the Court will determine if the Will is valid (if there is a Will), appoint and swear in the Personal Representative (Executor or Administrator), and issue documents authorizing the Personal Representative to act on behalf of the estate (Letters Testamentary).
These documents allow the Personal Representative to identify and collect the decedent’s property. (For example, a bank may require Letters Testamentary before allowing the Personal Representative to access the decedent’s accounts.)
Assets are classified as probate or non-probate. Non-probate assets are those which pass to the recipient automatically, without the need for probate. Non-probate assets include joint bank accounts with right of survivorship, life insurance policies with named beneficiaries, or real property with Transfer on Death deeds. These assets will pass according to the contract, plan, or policy, rather than the Will. On the rare occasion that a decedent had only non-probate assets at his death, probate may not be necessary.
Probate assets are everything else the decedent owned, and pass according to the Will or Intestacy Laws.
Once the Personal Representative has identified the decedent’s assets and debts, she should determine who will receive the assets and to whom the debts are payable. One of the Personal Representative’s most important duties is to pay the estate’s debts and distribute the remaining assets. Formal notice of probate must be given to each beneficiary and each creditor of the estate. Within 90 days of the Personal Representative being appointed, she should file an Inventory, Appraisement, and List of Claims with the Court, identifying the decedent’s assets and debts, along with their values. To preserve the decedent’s privacy, the Personal Representative may choose to file an affidavit in lieu of the Inventory, and simply distribute the Inventory to the beneficiaries and creditors.
An important factor in probate proceedings is whether the administration of the estate will be Dependent or Independent. A Dependent Administration requires constant Court supervision; the Personal Representative needs Court permission for almost every act she takes on behalf of the estate. The process of seeking and obtaining the Court’s authorization for these acts greatly increases the cost of probate: more paperwork, more hearings, and more time spent on the case by the attorney.
In an Independent Administration, the Personal Representative has much more independence and can perform most of her duties without specific Court authorization. This saves a considerable amount of time and money in the probate process. In most cases, the Court will allow an Independent Administration if the Will provides for one or if all beneficiaries agree.
A decedent’s debts will be paid in a particular order according to the law. If there are more debts than assets, the estate is insolvent. In this case, the State of Texas sets aside certain property for a surviving spouse and/or minor child of a decedent. After this “exempt property” is set aside, the remaining property is used to pay the decedent’s outstanding debts in order according to the law.
Texas allows a Will to be probated up to four years after the date of death. As such, finding the will is important. Common places a Will may be found:
Decedent’s home (filing cabinet, safe, office, attic, even the freezer!)
Decedent’s place of employment
Safety deposit box
The office of the attorney who drafted the Will
If possible, bring the Will. A copy of the Will is fine for the initial consultation, but keep in mind the Court will require the original Will for probate. If there is no Will, bring information needed to identify the decedent’s legal heirs.
If the decedent had a child or divorced a spouse after he executed his Will, state law provides protections against unintended consequences. A child born or adopted after a Will is executed is presumed to have been accidentally omitted, and that child may share in the estate equally with the decedent’s other children (although a Will may specifically “disinherit” any later-born children, in which case that child would not share in the estate).
A former spouse named in the Will is treated as if she died before the decedent (unless the Will was executed after the marriage to the former spouse ended).