What is Probate in Texas
Texas Probate is the legal process that transfers title of property from the estate of the person who has died (decedent), to his or her beneficiaries.
Texas Probate law requires all assets of a decedent’s estate are to be identified and gathered. Next, the deceased person’s debts are to be paid off completely from those assets. After all debts have been paid the remaining estate’s assets shall be distributed according to the decedent’s Will. If there is no Will or should a Probate judge rule the Will presented to the Probate court is found to be deficient, then the remaining assets shall be distributed according to Texas intestate succession laws. Assets That Don’t Need to be Probated.
What Are Some Misconceptions That People Have About The Probate Process?
Many people have the misconception that upon a family member’s passing, some unknown entity is going to take possession of all of the assets they left behind. In reality, it is the executor of the will who has the responsibility of paying debts and distributing the assets in accordance with the will…Read More
What Actually Happens During The Probate Process In Texas?
In Texas, the probate process begins with a meeting with an attorney who will ensure that the will is valid and that two witnesses and a notary have signed it. Next, the application, the will, and death certificate will be delivered to the court. If there is no will, then the court will post a notification of the application at the courthouse. After 10 days, there will be a very short meeting with a judge who will grant powers to an executor or administrator. Assuming there are no contested issues, the court-appointed administrator or their attorney will deal with all aspects of the estate, including inventory of the assets, drafting of deeds, and communications with the local department of motor vehicles if necessary…Read More
Some estate assets are not subject to the Probate process, including:
- Community property with right of survivorship
- Property held as joint tenancy with right of survivorship
- Payable-on-death bank accounts with a named beneficiary
- Life insurance proceeds with a named beneficiary
- Retirement accounts with a named beneficiary
- Survivor’s benefits from an annuity
- Assets held in trusts – typically a ‘Living Revocable Trust’
Community property (1 & 2 above):
Any property held in joint tenancy with right of survivorship or community property with right of survivorship does need not be probated. Property held in joint tenancy, tenancy by the entirety, or community property with right of survivorship automatically passes to the survivor when one of the original owners dies, leaving the other joint owner the sole owner.
Named Beneficiaries (3 — 6 above):
It is industry-common that life insurance policies and many retirement accounts are established with a ‘named beneficiary’. In such cases, these assets pass directly to the beneficiary without need to be probated. The beneficiary must often reach out to the insurance company, investment firm or bank to secure the necessary paperwork they must fill out.
Trusts (#7 above):
If the deceased created a trust, those assets need not be probated. That fact alone is why a massive majority of American’s choose a ‘Living Revocable Trust’ over a simple Will-based estate planning strategy. Many people are leery of any government employees getting involved in the private affairs of family members and the finances of individuals and families. Moreover, people involved in probated estates and their finances become part of the ‘searchable’ public record forever. The trustee named in the trust (like the Executor named in a Will) is tasked with distributing trust assets to named beneficiaries.
When Should Probate be Started?
If the decedent’s property is not automatically transferred to heirs or beneficiaries, you should start the process immediately. Otherwise, you might not have the ability to maintain, transfer, use, or sell the decedent’s assets until probate is concluded. Probate might not be necessary if the person who passed had a current trust, or if real estate was held in Title such that a spouse, for example, assumes full title by right of survivorship, and any insurance policies and savings accounts already have designated beneficiaries.
In Texas, (with a will or without) an executor (or other interested parties – see above) typically has four years from the date of death of the testator (person who drafted the will) to file an application to start probating an estate.
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