Probate is a lawsuit filed in a local court after the client passes away. In Latin, the word "probate" means "proving the Will." Simply stated, it is the legal process of settling an estate under the jurisdiction of the Probate Court. Upon the client’s death, once the Will is admitted to the Probate Court, it becomes a part of the public records. Then the “executor” or “administrator” will gather and inventory the client’s property, pay the debts, and everything left over will be divided among the client’s heirs. While the executor or administrator is responsible for "probating" the Will, the process is generally controlled by the court and a probate attorney. Texas has an efficient and generally cost effective probate process provided the decedent has a properly drawn Texas Will. Only assets titled in the decedent's name will pass according to a will and are probated. Non-probate assets titled in the name of a trust, jointly held assets, or accounts naming a beneficiary, are not probated.
Types of Probate Proceedings
Texas has several types of probate proceedings, which are different in the time required and expense. There are different kinds of probate procedures, depending upon the nature of the decedents assets whether the decedent has a valid Texas will, and total dollar value of the assets. The most common processes are as follows:
The most time efficient and cost effective probate procedure for mid-size to large estates. A valid Last Will and Testament is admitted to probate and Letters Testamentary are issued. Unsecured creditors are served with the Notice to Creditors. Secured creditors are also notified and may in turn file a Statement of Claim. The Independent Executor appears in Court to qualify then files and Inventory with the Court but otherwise acts “independent” of Court oversight.
This probate procedure is used when an estate has numerous debts or if the Will does not name an independent executor or the named agent does not qualify as an independent executor. All actions in a dependent administration require court action in order to take the action. This is usually the most costly and time consuming proceeding.
Determination of Heirship - "Intestate"
If decedent dies without a valid Will, the court will determine who the heirs are based upon Texas Law. This will require “notification” of all potential heirs. This may also result in a dependent administration. This can be a costly and inefficient means of distributing an estate. The State of Texas plan for heirship provides for different distributions to various heirs based upon degree of blood relationship and type of property. These issues can be eliminated with a Will.
Muniment of Title, Small Estate Administration, Affidavit of Heirship, and several other proceedings may be instituted. (Call our office for details.)
These proceedings are in many cases, solutions to cases where there are very few assets, no Will was probated within the required 4 years or as “curative” measures. They are typically much less efficient than an Independent Administration.
Depending upon the gross value of the assets of the estate, inclusive of insurance and other “non-probate” assets, federal estate tax may be due. The gross estate includes trust assets, life insurance, assets held in the decedent's name, jointly held property, accounts designating a beneficiary, life insurance, annuities, etc. The estate tax return (IRS form 706) is due 9 months after death.
Can Probate be avoided?
Probate can be avoided with careful planning. There are several techniques available that enable an estate to avoid the time, expense, and public nature of a probate. But the most comprehensive and streamlined way to avoid probate is by placing assets in a Revocable Living Trust, because trust assets, in most situations, can be distributed to beneficiaries almost immediately after the death of the trust-maker (i.e., Grantor).