What is Probate in Texas
Texas Probate is the legal process that transfers the title of property from the estate of the person who has died (the decedent) to his or her beneficiaries.
Texas Probate law requires all assets of a decedent’s estate to be identified and gathered. After that, any interested debt collectors or creditors must be notified that the deceased person’s debts can now be paid off completely from those assets in their estate. Once all debts have been paid, the estate’s remaining assets are distributed to the designated heirs 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.
- Handling The Debts & Taxes Of The Decedent In Probate
- An Overview Of Probate Law In Texas
- Can Someone Handle Probate Without A Qualified Probate Attorney?
- Who Is Legally Responsible For Handling The Probate Process?
- How Long Does It Take To Complete The Probate Process?
- Is Probate Always Going To Be Necessary In Texas?
- What Exactly Is Probate In Texas?
- What Is Your Experience In Guiding Clients Through The Probate Process In Texas?
- Why Would A Will Be Opposed Or Contested In Texas And How Can We Avoid That From Happening?
- In Texas, If You Have A Joint Account With Right Of Survivorship, Can Probate Be Avoided For That Account?
- What Is Muniment Of Title, As It Relates To Probate, In Texas?
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 the 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 ten days, there will be a brief meeting with a judge who will grant powers to an executor named in the will or appoint an administrator to manage and administer the decedent’s estate. Assuming there are no contested issues, the court-appointed administrator or their attorney will deal with all aspects of the estate, including inventorying the assets, drafting of deeds, filing any remaining taxes, and handling 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 not need to 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 needing 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 Americans 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 probate 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.
Once probate has been initiated, the duration depends on factors like the size of the decedent’s estate, the type of assets owned, and the number of parties involved. Probating simple estates under standard procedures with no contesting usually takes between six months to a year.
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 (the person who drafted the will) to file an application to start probating an estate. Texas probate law put the four-year statute of limitations in effect in order to ensure all estates are handled in a timely manner while memories of important facts are fresh. Once the statute of limitations has expired, interested individuals can still request that a court determine heirs for distribution of property.
What Does a Probate Attorney Do?
Though you are not required to consult a probate attorney under Texas law, we highly recommend seeking experienced counsel. Probate proceedings involve detailed processes, and without extensive knowledge of the law, an executor or administrator could easily make a mistake that jeopardizes the estate. The personal representative for the decedent has a long list of responsibilities that must be carried out to the letter of the law and can even be held legally responsible for failure to act according to the complex probate procedures.
Additionally, the probate process can take an emotional toll on the executor or representative of the decedent. Instead of grieving the loss of a loved one, the executor is contacting creditors and worrying about what extra taxes need to be filed, all while trying to preserve peaceful relations amongst the various heirs of the estate. A probate attorney can take the majority of the burden from the executor’s shoulders by offering caring, experienced guidance through the entire probate process.
At the Law Office of Richard Cahan, Probate Attorney Richard Cahan has been helping grieving families in Pflugerville, Texas, navigate the process of probate for over nine years. He offers one-on-one consultation and strives to rate highly in customer service so that families devastated by loss don’t have to suffer the added burden that probate can bring.
If you live in Pflugerville or surrounding areas and have recently experienced the death of a loved one, let Probate Attorney Richard Cahan guide you through the process of securing the assets left to you from start to finish.