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What is probate court?
Probate court is a specialized part of the judicial system that handles such matters as estates, wills, and guardianships, as well as the commitment of mentally ill persons to institutions that are designed to help them. Probate matters include the administration of estates of deceased persons, will contests, the guardianship of minors and incapacitated persons, and mental illness matters.
The basic role of the probate court judge is to make sure that the deceased person’s creditors are paid, and that any remaining assets are distributed to the proper beneficiaries. The process can quickly become lengthy if complications arise. For example, when wills are contested the probate court holds the responsibility of ruling on the authenticity of the will and the mental stability of the individual who signed it.
About Texas Probate Courts
The Texas Constitution grants jurisdiction over probate matters to either the constitutional county court or to the district court.
In some counties, the Legislature has granted the county court at law concurrent jurisdiction in probate matters with the constitutional county court. In other counties, the Legislature has granted the county court at law concurrent jurisdiction in probate matters with the district court. In the more populated counties, the Legislature has created specialized probate courts (entitled statutory probate courts) to hear probate matters exclusively.
Thus, probate matters might be heard in the county court, county court at law, statutory probate court, or district court of a particular county.
Probate is a legal procedure by which a court oversees the allocation of assets to beneficiaries and payments of debts of a person who has died. Many states have a specialized probate court. Outside of Texas, there are some states a probate court is called by other names, such as Chancery Court, Orphan’s Court or Surrogate’s Court. The role of the probate court is to make sure that a deceased person’s debts are paid and assets are allocated to the correct beneficiaries. The term probate is used to describe the legal process that manages the assets and liabilities left behind by a recently deceased person.
These probate courts appoint someone to take control of the deceased person’s assets, ensure that all debts are properly paid, and distribute the remaining property to the correct beneficiaries. This individual is called the executor or administrator.
The probate process begins in Texas when a person files a petition for probate with the county probate court system. This petition is generally filed by a designator of the deceased’s will or a family member of the deceased.
After the petition is filed the executor or administrator is appointed by the probate court. The executor or administrator holds the responsibility of allocating the deceased’s estate to the correct beneficiaries, among other administrative duties. Generally, a probate lawyer is hired to deal with the complexities of probate.
Probate Court without a will
When a person dies with no will, the probate court allocates the person’s property to the deceased person’s next of kin. The respective state’s probate law determines the next of kin. This is known as the law of intestate succession. Intestate succession outlines the allocation mix between surviving spouses, children, siblings, and spouses. You can find a Texas Intestacy Chart which demonstrates the rules for determining the decedent’s beneficiaries.
In Texas, the law of intestate succession can be considered to be the “will” the state makes for you if you don’t make your own.
Probate Court with a will
When an individual dies in Texas with a will (generally called Last Will and Testament) the property is then distributed to the people (or sometimes organizations such as charities) the will designates to receive it.
However, before the probate of a will, the court must first make a determination that the will is valid. If someone contests the validity of the will, the court will decide the matter.
It is important to note: In all states even if there is a will, any surviving spouse is entitled to a certain portion of the property. This is called the surviving spouse’s elective share and the amount of the share will vary depending on the state.
With regard to community property in Texas, barring a separate agreement between spouses, one half of the property earned by the couple during their marriage belongs to the surviving spouse. The will will dictate how the decedent’s share of the community property and the decedent’s separate property will be distributed.
The Cost of Probate
The costs of probate include, among other things, court filing fees, costs for publishing notices in newspapers, and attorney’s and executor’s fees. In a complex estate, there may also be fees for an accountant. Fees for a probate attorney may be based on an hourly rate, a percentage of the value of the estate, or a combination of these.
A probate can take anywhere from months to even years to complete. This can be further exacerbated by a probate dispute. For an average modest estate, it can take from six months to two years. The longer it takes, the more it costs.
An important note: Probate makes the decedent’s financial situation a matter of public record. This includes the extent and nature of the assets, the person’s debts, and who will get the assets.
What’s makes up Probate Costs?
How much probate will ultimately cost really depends on the estate size and how much legal work is needed during the probate process.
Here are a few items that definitely come with a price tag:
- Court Filing Fees – Each county in Texas has its own filing fee amount, so the exact amount will depend on the county in which the probate is filed.
- Executor Compensation – Carrying out these duties is not a simple job. The executor or personal representative will be paid from the estate for their services. Usually, each state has a certain percentage (like 5% of the estate value) and some other minimums for compensation.
- Creditor Notice Fees – It can sometimes cost a hefty price to put up notices in local newspapers and other forms of communication to notify beneficiaries and creditors about the death.
- Probate Bond (aka Executor Bond or Fiduciary Bond) – This is a Texas state court bond that is issued on the performance of an executor or administrator of an estate. The purpose of this bond is to protect the beneficiaries or creditors of the estate from harm caused by the malfeasance or negligence of the executor or administrator