Probate in Texas may seem overwhelming but with an experienced attorney to guide you and your family, the process can be easily managed and your loved one’s assets distributed appropriately.
What Is Probate?
Probate is the legal process in which a court formally recognizes an individual’s death, oversees the distribution of that individual’s assets, and ensures the payment of the deceased’s debts. A probate court is involved to both facilitate the process and to protect the interests of beneficiaries and creditors.
If the deceased (known as the decedent) has drafted a Will, the designated executor or personal representative is required to file for probate. There are time constraints on how long the executor has to file for probate in Texas. In general, an executor has four years from the day the testator (the deceased who created the Will) dies to file. If the executor does not file within that time period, the laws of intestacy (death without a legal Will) will dictate how the estate’s assets are distributed.
Some Texas courts do not allow non-lawyers to file applications to probate a Will or an estate, nor do they allow non-lawyers to be an estate representative in court. The Law Office of Annabel Moore can adeptly handle difficult situations that may arise if there are multiple beneficiaries or a decision must be made as to how the process should be handled.
How Long Will It Take?
Depending on the complexity of the estate, probate can take anywhere from a few months to a year or longer. If there is a valid Will and the estate plans are specifically detailed, the process can be completed within six months. If the original Will cannot be located or is contested, the process can go on for a year or more. In contested cases, the court will be increasingly involved, which can make things more complicated and take longer.
Although it can take months to probate an estate, designated beneficiaries are not necessarily left without financial benefits while the estate is being probated. Some assets are not distributed through the probate process and are considered part of the non-probate estate. These items may include financial assets from retirement policies, insurance policies, pensions, and profit sharing. Those assets are directly transferred from the bank or other institution holding them to the beneficiary named on the account or policy documents. Be mindful of the taxes associated with the direct distribution of those assets.
Types of Probate in Texas
Texas has two prominent types of formal probate proceedings – Independent Administration of Estates and Dependent Administration of Estates.
Independent Estate Administration
The majority of Texas Wills direct the designated executor to file for independent administration because it is a simpler, faster, and less expensive compared to dependent administration. If the Will does not specifically designate the independent administration path, the executor or estate administrator can ask the court to act as an independent executor if all beneficiaries agree. An independent estate administration executor does not have to post a bond and does not have to ask for the court’s permission to take steps to settle the estate, including paying debts, selling estate property, setting aside assets for a family allowance, and distributing assets to inheritors. An independent executor must still publish notice to all potential creditors and file an inventory of all assets found with the court. The executor is also expected to collect and keep safe all estate assets until they are transferred to the rightful beneficiaries.
Dependent Estate Administration
If an executor requests dependent administration, the court will be much more involved and will appoint an administrator who must request the probate judge’s approval for every step of the process. This typically happens when beneficiaries cannot agree on the terms of a decedent’s Will or the appropriate distribution of assets. A dependent administration is designed to protect the rights of beneficiaries.
Muniment of Title
Another process available to probate the Will is called “muniment of title.” If there is a valid Will, no unpaid debts, and Medicaid cannot make a claim against the estate, this process can be requested when a Will is filed in probate court. The court may decide there is no need for probate administration and admit the Will as a muniment of title to the estate assets. In these cases, the Will document transfers assets to the named beneficiaries. The court has no need to appoint an executor or administrator in this situation. The individual who filed the will and requested probate as a muniment of title is required to file a sworn statement (affidavit) with the court within six months updating the court on which portions of the Will have been carried out.
In all cases, the caring legal team at the Law Office of Annabel Moore can help you determine the best way to proceed.
Filing for Probate
To get the process started, an application for probate must be filed in the appropriate Texas probate court in the county where the decedent lived. In Texas, there are 18 probate courts in 10 counties. An experienced attorney will make sure to start the process in the correct jurisdiction. Filing for probate in the wrong court will almost guarantee a Will is thrown out of court. If your loved one passed away in a Texas county that does not have a dedicated probate court, we will help you find the appropriate jurisdiction in which to file the application.
Friendswood Probate Lawyers
Annabel Moore collaborates with individuals and families of all types to bring a peaceful and effective resolution to the probate process, step by step. Call us today for more information on probate administration.