Are you navigating the complex process of probating an estate in Texas?
We can assist you to deal with your family affairs and help you plan for the future by drafting a will that expresses your exact wishes. Our Probate Attorneys in Texas will guide you in the administration of your family members’ estate.
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Comprehensive Guide to Probate
Probate is the legal process of validating a deceased individual’s will and/or distributing their assets to their designated beneficiaries or heirs at law.
Expert Probate Attorneys in Texas:
At the Law Office of Udo Ezeamama, our probate attorneys in Texas can guide you through this process and ensure that the distribution of the deceased’s assets is done in accordance with their will or, if the deceased died without a will, then according to Texas law.
The Probate Process:
This process is designed to facilitate the distribution of the deceased person’s assets and, when necessary, to protect both beneficiaries and creditors’ interests in the decedent’s estate.
In Texas, there are 18 probate courts in 10 counties. It is crucial to start the process early in the right jurisdiction, as failure to do so may result in the case being declined. Texas has a general rule that states that the executor has four years from the date of death of the testator, or the individual who formulated the will, to file for probate.
Generally, if the executor fails to file the will within that given period of time, the laws of intestate will oversee how the estate’s assets are distributed. For a simple inheritance, the probate process can be finalized within six months.
When the Will is Missing or Challenged:
However, the process can occasionally be stretched on for a year or more if the original will cannot be discovered or the will is challenged. This can make the process more complicated and will require more time for court involvement and supervision.
The Law Office of Udo Ezeamama, as a Probate attorney in Texas, can help you navigate these complexities and ensure that the probate process is completed in a timely and efficient manner.
Understanding Non-Probate Estate:
Though it can take several months or even years to complete, it is important to understand that certain assets, known as the non-probate estate, can be transferred to heirs outside of probate.
Non-Probate Assets:
Examples of non-probate assets include IRA’s, insurance policies, KEOGHs, pensions, and profit sharing. These assets are transferred directly from the holding institution to the named beneficiary.
The Importance of Consulting a Probate Attorney in Texas:
When it comes to probating an estate in the State of Texas, it is crucial to consult with a probate attorney. The Texas probate process can be complex and frustrating without proper guidance. Some courts will not allow non-lawyers to file probate applications or represent an estate in court. Additionally, with numerous beneficiaries, it can be difficult to make decisions about the type of probate that should be filed.
Understanding Legal Terms in Texas Probate:
It is important to be familiar with legal terms used in the Texas probate process, such as “dependent administration” and “independent administration”.
- Dependent administration involves the court being heavily involved in the case and appointing a dependent administrator who must seek the probate judge’s approval in every step of the process. This is typically used in cases where beneficiaries are at odds over the will or estate assets.
- Independent administration, on the other hand, is a more straightforward process in which the court appoints an Administrator who files an inventory of assets and creditors, and proceeds without the judge’s approval. About 80% of inheritances probated in Texas are independently administered. Texas law even allows for a requirement for independent administration to be included in a will.
General Steps to Probate Process in Texas
When someone passes away with an established will in place, an application for probate must be filed with the proper Texas probate court in the county where the deceased resided. This application must include the original copy of the will and a petition for probate.
After the will is filed, the clerk of the court will post a notice at the courthouse notifying all interested parties that the will has been filed and inviting anyone who may want to contest the will to come forward and state their reasons. This notice must remain posted for at least 10 days to 2 weeks. If no one contests the will, the probate court will proceed with opening the administration of the estate.
- After the waiting period, a probate hearing takes place before a probate judge. During this hearing, the judge will acknowledge the decedent's death, confirm the individual applying to be administrator/executor and determine if they are fit to serve, and verify that the decedent died with a valid will.
- The person seeking to be appointed executor of the estate must provide valid evidence confirming several important points, such as the date of the decedent's death, their legal residence, and that the will being filed is the decedent's last will and testament.
- They must also testify that the will was correctly executed and witnessed. The executor will also take an oath to fulfill their obligations and legal tasks as executor. Once the hearing is conducted and all requirements are satisfied, 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 serves as a notice to third parties that the executor has the authority to act on the estate’s behalf.
- Once an executor or administrator is appointed, they are responsible for taking inventory of and appraising the deceased's assets within 90 days of the hearing. They must also notify beneficiaries of the will, inform creditors, pay off debts, file the deceased's final federal tax return, and settle the estate.
- This may include selling estate assets. An attorney can assist with these duties. The executor must swear that the inventory, appraisal, and claims are accurate to the best of their knowledge. The level of detail required depends on the complexity of the estate and whether there is potential for disputes about assets or values among beneficiaries or creditors.
- The estate cannot be settled if family members or other potential beneficiaries challenge the will. These disputes must be heard by a probate court judge and resolved. Disputes may also arise regarding the executor's performance of their duties.
- The executor is considered a fiduciary and is responsible for protecting and preserving the estate's assets for the beneficiaries, not their own interests. If beneficiaries feel the executor is not fulfilling this duty or is being biased, they may hire an attorney to file a breach of fiduciary duty claim.
- The process of probating a will can be complex and may lead to conflicts within the family. Contesting a will must be done within two years of the original probate in Texas.
- This step involves the process of identifying and informing the beneficiaries of the estate, as outlined in the decedent's valid will. In the event that no will has been filed, the probate court in Texas will be responsible for determining the distribution of the assets.
- Any parties with an interest in the estate may file a petition for heirship determination with the court in the county where the property is located, with the guidance of a Texas probate attorney. The beneficiaries must either sign the petition or be personally served with the notice. If there are unknown heirs, the court may order for notices to be published in local newspapers and posted at the courthouse.
- Procedures for proving heirship involve providing both written and oral testimony to support the information provided in the petition. Additionally, parties such as secured creditors or authorized representatives of the decedent may also initiate these proceedings as interested parties in the estate.
- Once all debts and any disputes have been resolved, the remaining assets are then distributed to the beneficiaries.
- Examples of assets that are distributed outside the probate process include (Non-probate property):
- 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 they pass directly to the beneficiary without being subject to creditors' claims or costs of estate administration.
Terms Used In Probate Process In Texas
Decedent: The person who has passed away and whose will or properties are in the probate process.
Will: A legal document that outlines how a decedent’s assets will be allocated among their beneficiaries.
Estate: All of the assets belonging to the decedent, including money, real estate, life insurance policies, stocks and bonds, retirement accounts, automobiles, and jewelry.
Beneficiaries/Heirs: Family members or friends named in a will or determined by the court (if there is no will) who will receive assets from the decedent’s estate.
Executor: A person named in a will or appointed by the court to manage a deceased individual’s financial obligations and assets. The main duties of the executor include cataloging the decedent’s assets, paying debts and taxes, filing lawsuits, and distributing assets to the beneficiaries as named in the will.
Administrator: A person appointed by the court to take on the responsibilities of the executor when there is no will and no executor has been named. Also, in cases where a named executor has been removed by the court, and the court appoints a different person. In some cases, the court may appoint one of the primary beneficiaries to act in this capacity.
Probate Court: The court where the probate hearing takes place.
Don't go it alone
Our expert probate attorneys can guide you through the process and ensure that the distribution of assets is done according to the deceased's wishes or Texas law.
Whether you're dealing with dependent or independent administration, we have the experience and knowledge to get you the results you need. Contact us today to schedule a consultation and take the first step toward a timely and efficient probate process.
