How Do You Determine Whether An Estate Should Be Probated?
After somebody passes away, and once everybody is in the right mind frame to discuss the decedent’s affairs, the will should be taken to an attorney to discuss the probate process. After the initial conversation, we’ll talk on a weekly or daily basis about the assets, what needs to be taken care of, and make decisions. The courts don’t do anything. They don’t know anything about anybody passing until somebody files for probate. It’s possible that an heir or beneficiary also won’t know that there is a will, or that probate was filed. We don’t notify the heirs until after the will has been accepted by the court. Usually, that is when heirs and beneficiaries find out if there is a will. The executor is supposed to file a probate and move things forward.
What Are The Probate Options When There Is No Will?
If there is not a will, there are three options. One of the options has two parts. A traditional probate is called a determination of heirship and independent administration. That is a situation in which nobody has a will, but everybody who is an heir by law agrees to who is going to be the administrator. An administrator is similar to an executor. The process is started by going to court to prove who the heirs are, and have someone given the power to administer the estate. This part can take two months, six months, or more depending on the ad litem.
A determination of heirship and dependent administration basically occurs when there is a disagreement among the heirs about who is to be in charge. The court is going to appoint somebody to be the administrator. However, they are not going to have anywhere near the powers of an executor. For example, if a property needs to be sold, the administrator has to first motion the court to basically ask for permission to talk to real estate agents. Then, they have to come back and tell the court that they talked to some real estate agents and selected one. At that time, they have to motion the court again to allow them to sign a contract with the real estate agent. The real estate agent can then list the property. If they get an offer, the administrator has to show it to the court. The court has to approve the offer and the contract. Once the property is ready to close, the administrator has to go back to court to have permission to close. In contrast, an independent executor with a will doesn’t have to go through the court for every single step. Executors have a moral and legal fiduciary duty to do the right thing. If they do something wrong, a complaint can be made, but they don’t have to ask permission to do everything.
The second option is a small estate affidavit. If everything fits under a small estate affidavit, all the heirs have to agree and sign off on it. The court then considers it. The court can reject it for various errors in the process.
The third option is an affidavit of heirship. The main benefit with an affidavit of heirship is that you can avoid the cost of probate if the title company accepts it for sale of the property. However, if the title company doesn’t accept it, you could lose a contract for the sale and acquire some penalties or lose money due to the costs of getting the sale processed. Furthermore, you would still have to go to probate since the title company did not accept the affidavits.
That is a decision for the client. Do you potentially pay more to make sure it is done correctly without having to deal with any headaches? Or, do you try to save some money and potentially end up paying more than what it would have cost to do probate from the start?
How Does The Probate Process Work In Texas?
In Texas, there are two routes that can be taken for a traditional probate: with a will and without a will. If there is a will, the first step is to meet with an attorney to go through the process. The attorney can advise on what is needed to move forward. Once you decide to move forward, an application will be filed. You don’t have to have the executor or heirs sign anything. It takes about ten days. After that waiting period, you can ask for a hearing date. You can ask for a hearing date sooner if it’s needed, but traditionally, you wait ten days for everything to be set in place. Once the date is set, you go to court.
The hearing will depend on your judge. If you are in Travis County, everybody is pretty much set up on time increments. The time is normally set in five to ten-minute increments. You might be able to watch another hearing before yours is called. When called, you talk to the judge for five minutes. We recently did a hearing via Zoom and were in and out in under three minutes. After you speak with the judge, they sign an order.
The order and proof of death gets filed with the court. Then, the court gives the letters testamentary and a copy of the will or order. Thereafter, you can move forward with getting things taken care of, like matters with the banks and title companies. From there, you have to publish a notice with the newspapers so that the creditors become aware of the situation. The inventory can be done after. Those are the main steps. Depending on the situation, there may be some other things that may have to be done. If you don’t have a will, the process is a bit more elongated.
If there isn’t a will, you will have to meet with an attorney and file an application. The administrator or client has to sign the application to verify that it is true and accurate. If you want to do it the nice way, you have to get all of the heirs to sign a waiver stating that they agree that the person signing the application should be the administrator. By signing the waiver, the heirs acknowledge that the administrator will take care of things. They won’t have to worry about getting served with the paperwork and incurring that cost.
Next, the ad litem will be appointed. Once the ad litem is ready, you have to publish the notice with the newspaper and ask for the court hearing. At the hearing, the process is a bit different. Witnesses have to be brought in to say who the family is. They have to be disinterested witnesses, they cannot be any of the heirs. The witnesses will depend on the ad litem and judge. Sometimes, the spouses of the heirs or somebody who is more distant can be a witness. However, other times the witnesses have to be further away such as distant family or friends. Once the witnesses testify in court, the judge signs the order, the witnesses sign a document about their testimony, and the administrator signs the proof of death in the oath office.
Subsequently, you receive the orders and letters of administration instead of the letters testamentary. Following the orders and letters of administration, you have to publish with the newspaper and give it to the banks, take care of everything else, and do the inventory at the end. If all of the heirs are not involved, that process is very tedious at every single stage. You would have to serve people notice of the case. Additionally, anything you want done with the banks or title companies will have to be approved by the court.
For more information on Probating An Estate In The State Of Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 829-6100 today.
CALL FOR CONSULTATION
*Most Consultations Free Of Charge