What Is Probate In Texas?
Probate is the process of proving the contents of a will. If there is no will, it is the process of lawfully identifying all the lawful heirs of the estate so that the probate property is properly distributed.
What Are Some Of The Factors That Set The Stage For Probate To Occur?
Probate is a fact of life because life is 100% fatal and most people accumulate enough wealth in the form of real property, personal property, jewelry, etc., that it requires legal transfer to the heirs. A person’s estate is principally composed of real property, such as their house, and also different types of personal property such as vehicles, furniture, coin collections, artwork, jewelry and other valuables. The reason probate takes place is because we need to properly transfer that property. In Texas, we do that in a specialty court called a statutory probate court. Texas has very efficient probate and estate administration procedures, so probate in Texas is generally be efficient and not as costly as it is in other states.
When we probate something, we’re talking about proving the contents of a will or proving to a court that the lawful heirs have been identified and that the person who is applying to be the administrator or executor is qualified to properly distribute the assets. When someone has a valid will and a self-proving affidavit, it’s very easy. Typically, someone hires an attorney to file an application and probate the will. There is a hearing in front of the court. A series of questions are answered with the judge to establish that it is a valid will and that the person is qualified to be the executor.
To qualify as an administrator, the court wants to make sure that that person doesn’t have a felony record or is in bankruptcy. An administrator or an executor has a fiduciary duty of care and is tasked with the distribution of the property per the laws of the state of Texas and, of course, the testator’s intent. This fiduciary duty imposes certain important duties and responsibilities that an attorney can explain. One interesting fact is that 75 percent of people die without a will, which is referred to intestacy. In that case, the law requires us to prepare a declaration of heirship. So, we guide the applicant to identify all the lawful heirs, provide legal notices, and submit an application. The court then will appoint an attorney ad litem who is tasked with verifying that we have in fact fully disclosed all heirs to the satisfaction of the court.
In the case of an intestate proceeding, this process is going to be more costly because of the attorney ad litem fees, which are normally $400.00 and the additional work of identifying and notifying all heirs. The attorney ad litem is just there to ensure to the court that he or she has done their due diligence and that there are no missing heirs in the heirship declaration. Once that takes place, the court is going to issue what are called letters testamentary, which is the legal authority that provides the executor or the administrator the ability to start distributing the property per the will or the Texas rules of succession and distribution. The court will provide the applicant a schedule of events they have to ensure takes places, such as notifying creditors. An inventory will have to be prepared that identifies all the estate property. They can then distribute the estate. At the end, they file a final accounting and a closing of the estate.
When you’ve done all those things, you go back to the probate court, through your attorney, and you attest that you properly distributed the estate. You’ve done an accounting and you close it out. Generally speaking, most probate procedures are fairly simple. It gets complicated when you have a large intestate estate. Naturally, heirs want a bigger piece of the estate. This can lead to a will contest, where one or more presumed heirs contest the validity of the will or the estate’s administration. That’s when things can get complicated and costly in terms of litigation. You need to be represented, so that the proper motions are filed with the court.
When you have an intestate proceeding, meaning that you do not have a will and you’re submitting a declaration of heirship, it’s the same thing. Many times, there are several decedents connected to each other. For example, Dad died ten years ago and nobody probated his estate. Now, mom dies, and they have to probate the estate because the property was in joint names, so that they can sell the home. They need to probate the dad’s estate first and then the mom’s estate to enable them to transfer title and sell the property.
Oftentimes, people don’t realize that the reason they need to probate the estate is so they can transfer title on real estate, sell it, collect the proceeds and distribute it to all the heirs. An executor or administrator also has a duty to pay off the debts. The administrator/executor also has to make sure that the final federal tax return has been filed, that any attorney fees are paid, and that the heirs receive their distribution.
One of the issues that frequently comes up is notifying all the heirs who are entitled to the property in the estate. You have to notify them by legal process so that the court can set your case for a hearing. Many times, the heirs will sign a waiver indicating that they have been notified and waive their presence at the hearing. Scheduling problems occur when an heir is unresponsive or cannot be located. Then, you may have to go through a citation by publication to show the court that you have fulfilled your legal duty of notifying all heirs.
- Is Probate Necessary In The State Of Texas?
- What Happens During And Throughout The Probate Process?
- What Are Some Costs Involved In The Probate Process?
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