When it comes to a loved one passing away, it never happens at a good time. There is the initial shock of that person's passing, the realization that there is more going on than just your grieving, and then the "real world" considerations regarding the finances of that person and their immediate familyUpon losing a loved one, family members must move forward in handling their estate, which often requires going through probate. Probate is a legal process that takes place after someone dies if there is no living trust. It is a court-supervised administration of a decedent’s estate.
In most cases, the decedent’s Last Will & Testament names an Executor who is designated to handle the distribution of assets, including real property.
Texas probate executor duties are handled by a Personal Representative which is the Texas term for what most other states call an executor. Texas probate is notably simpler than probate in many other states, thanks to something called the "independent administration" of estates. Using this process, most Texas executors wrap up estates with very little court supervision.
The Hearing.
The probate hearing takes place before a probate judge. During this hearing, the judge will recognize the decedent's death, confirm that the individual applying to be administrator/executor is fit to serve, and verify that the decedent died with a valid will.The applicant seeking to be appointed executor of the estate must provide evidence confirming several important facts, including the date of the decedent's death, the location of their legal residence, that the will being filed is, in fact, the decedent's last will and testament, and that the will was correctly executed and witnessed. The executor will also swear an oath to fulfill their responsibilities and legal duties as executor.
In Texas, estate executors generally have four years from the decedent's date of death to file a will for probate. If the executor fails to do this, the probate court will distribute all assets according to intestate succession law.
1. Filing the Will and Application for Probate.
When someone dies with an established will in place, the will must be filed with the proper court along with a written application to admit the will to probate and be appointed executor of the estate. A decedent's will should be filed with the probate court in their county of residence prior to their death. After filing the will, the clerk of the court will post a notice at the courthouse advising all interested parties the will has been filed. The notice must remain posted for at least 10 days. The purpose of this waiting period is to give those who wish to contest a will time to do so. If no one comes forward to contest the will, the courts will move forward with confirming the will's validity.2. The Hearing.The probate hearing takes place before a probate judge.
During this hearing, the judge will recognize the decedent's death, confirm that the individual applying to be administrator/executor is fit to serve, and verify that the decedent died with a valid will.
Once the hearing is completed and all requirements are met, the judge will admit the will to probate and appoint the applicant as the executor of the estate. The clerk will then issue “letters testamentary” to the executor, which serve as notice to third parties that the executor has authority to act on the estate’s behalf.
Once the hearing is completed and all requirements are met, the judge will admit the will to probate and appoint the applicant as the executor of the estate. The clerk will then issue “letters testamentary” to the executor, which serve as notice to third parties that the executor has authority to act on the estate’s behalf.
3. Inventory, Appraisement, and List of Claims.
It is the executor's responsibility to inventory and appraise the deceased person's estate within 90 days of the hearing. Executor responsibilities also include notifying beneficiaries of the will, posting a notice to creditors, discharging debts, filing the decedent’s final federal tax return, and otherwise settling the estate. The executor may also be responsible for selling estate assets. A probate attorney can assist with many of these duties.
4. Resolving Disputes.
The estate cannot be settled until all disputes are settled – whether these are disagreements over the valuation of assets, contesting a creditor’s claims to an estate, or contesting the will. Sometimes, disputes are related to the duties of the executor. The executor is considered a fiduciary and is expected to protect and maintain the estate's assets for the beneficiaries above his or her own interests. If the heirs to an estate feel the executor is not fulfilling this fiduciary duty, they may engage an attorney to file a breach of fiduciary duty claim.
5. Distribution of the Estate.
Once all the debts and any disputes are resolved, the remaining assets are then distributed to beneficiaries. It should be noted that not all assets pass through the probate process: joint accounts with rights of survivorship; assets with designated beneficiaries, such as retirement accounts, IRAs, and life insurance policies; property held in trust; or real estate with a transfer-on-death deed are considered non-probate assets and pass directly to the beneficiary without being subject to creditors’ claims and expenses of estate administration.
FINAL NOTE: Does Every Estate Have to Go Through Probate?
No, not every estate is subject to probate. Small estates, or those valued at $75,000 or less, do not have to go through the probate process. Instead, heirs can opt to file a Small Estate Affidavit. Additionally, not all property is subject to probate. For example, jointly held property and life insurance properties with a named beneficiary do not have to go through the probate process.Because real property often comprises the bulk of an individual’s estate, whether it’s a family home or an investment property, the sale of real property through probate should be sold in a way to provide maximum benefit to the heirs while protecting the heirs and the interests of the decedent. If a probate property is a Trust Sale or if the Personal Representative/ Administrator of the estate has been granted “full independent powers” under the Independent Administration of Estates Act (IAEA), the sale may not require court confirmation.
If you’re not sure if Texas probate is necessary in your case, you are encouraged to consult an Texas probate attorney.
