Probate of Wills
Probating a Will in Texas
An administrator or executor will be appointed according to the will. If there is no will, an executor will be appointed according to Texas law. This individual must carry out the probate process in order to ensure the estate is distributed appropriately.
The process when a decedent had a valid will, which named an Executor for the Estate, is known as Independent Administration. An Independent Administration gives the Executor more freedom to carry out his or her duties, without strict oversight by a probate court. Another key distinction with this type of probate is that the Executor is not required to post a bond or insurance policy for the estate.
When someone has died without a will, this process can vary quite a bit. Texas probate law typically requires that the estate fall under a stricter oversight by the court, known as Dependent Administration. The administrator is required to post a surety bond, seek court approval for every step in the process of distributing an estate, while maintaining and filing reports every year with a Texas probate court regarding the estate.
Other Ways to Probate a Will
You can probate a will in Texas through a process known as Muniment of Title. This process can be utilized when a valid will exists, the estate has no debts except secured real estate, and Medicaid has no claims against the estate to recover benefits the decedent may have received. With Muniment of Title, the court has to determine that there is no need for a probate administration, and admit the will into probate as a muniment or evidence of title to the assets of the estate. This process involves no Executor being appointed, but the individual requesting the Muniment of Title must file a sworn statement with the court within six-months, verifying that the terms of the will have been carried out.
When a decedent has no will and the value of their estate is $50,000 or less, the beneficiaries of the estate can file a Small Estate Affidavit (sworn statement) to collect the property without having to go through the probate process.
Non-Probate Assets in Texas
Most people will, at some point in their lives, experience the process listed above in the probate of an estate. This process can be avoided in some specific circumstances. The following are considered Non-Probate Assets in Texas and can be transferred to the beneficiary without probate:
- Property held as joint tenancy with right of survivorship;
- Community property held also with right of survivorship;
- Bank accounts that are payable upon death;
- Funds from life insurance policies;
- Survivor benefits that come from an annuity
An Overview of Steps:
The probate process will vary dramatically from case to case, and even county to county. A high-level list of steps that most people experience throughout the probate process are listed below.
Whether a will is present or not, an application for probate must be filed with the proper Texas probate court in the county where the decedent resided. This step in the process is often fairly easy to start for most individuals.
Posting & Citation
Posting, formally known as Posting Notice of Probate Administration, is a process which lasts about two weeks from the time of filing. During this time, the County Clerk will post a notice at the courthouse stating that a probate application was filed, and to serve as notice to anyone who may contest the will or administration of the estate. If no contests are received, the probate court will proceed with opening the administration.
In addition to posting, there are situations where the other party has to be served with citation. Texas law requires this in situations where there is likely to be a probate dispute. The citation puts those with an interest in the estate on notice that they need to pay attention to what is happening and show up to court to represent their interests if need be.
Validating the Will
After the two-week posting period, a hearing will be presided over by a Texas probate judge from the respective county. This judge will legally recognize the decedent’s death and the jurisdiction of the court over the case; verify that the decedent had a valid will or that there was no will; and appoint an administrator or verify the person named as Executor.
Inventory of Assets
After an executor or administrator has been named to the estate, that individual must catalog and report all the assets held by the estate to the county clerk within 90 days of appointment. The executor must prepare an Appraisement, Inventory and List of Claims which must be sworn to be accurate to the best of their knowledge.
The Inventory is a catalog of estate properties which must be meticulously prepared. It must include complete and proper descriptions of the various estate assets together with reasonably accurate valuations of these assets as of the date of death. How detailed this catalog must be depends on the:
- Complexities of the specific estate;
- Whether or not there is likely to be any question(s) of assets owned or values by beneficiaries or creditors;
- As well as other variables
There is an exception to the filing rule for independent executors. If there are no unpaid debts owed by the estate, except for secured debts, taxes, and administration expenses, and if the decedent’s will does not require the Inventory to be filed, then the executor may file an Affidavit In Lieu Of Inventory with the county clerk before the deadline, swearing that there are no unpaid debts and that all estate beneficiaries have received a copy of the Inventory. The purpose of this exception is to protect the decedent’s privacy by keeping their assets from appearing in a public record.
If the decedent had a valid will, the Executor will notify beneficiaries of the estate. In the event no will was filed, the probate court is charged with the task of determining heirship in Texas.
All heirs must sign the application or be personally served with the application. If there are potentially unknown heirs of the deceased, the court requires that notices be posted at the courthouse as well as in newspapers.
All applicants must be able to prove the truth of the details in the application. Written as well as oral testimony is sometimes necessary.
Besides the heirs themselves, a secured creditor or a qualified representative of the deceased can also initiate the proceedings as parties interested in the estate.
Decedents may leave behind debts that must be resolved out of their estate. Some examples include mortgages, household expenses, medical bills, etc. These will be paid from the estate. Before they are paid, however, creditors must be notified of the decedent’s death by the estate’s Executor and then given the opportunity to file claims against the estate. This can be done with a notice published in the local newspaper.
The estate cannot be finalized in Texas if family members or other potential beneficiaries are contesting a will or if they file related grievances. These disputes must be heard by a probate court judge.
Contesting a will must be done within two years after the original probate in the state of Texas. Whether you are the complainant or not, A legal representative is necessary to direct and guide you through the dispute process.
An individual contesting a will must prove that there is something wrong with the will or that the will is invalid. There are several ways that a will can be determined to be invalid, including but not limited to:
- More than one will was executed;
- The will was forced due to excessive influence by a third party;
- The will was improperly executed;
- Proving the will was a forgery
Many people contesting a will in Texas never get to court because mediation is the suggested course of action for resolving conflict with Texas probate. While less often, conflicts are settled out of court, between the family and their attorneys.
After the debts and expenses of the estate are resolved and any contests of the will are settled, the remaining assets of the estate are then distributed to the previously determined beneficiaries.