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Probate of Wills
When a will is present, an executor or administrator will be appointed in said will. In the case a will is absent, an executor will be appointed according to Texas law. They must carry out the probate process in order to help ensure the estate is distributed as intended.
Independent Administration is the standard process when a decedent had a valid will in which an Executor for the Estate is named. With an Independent Administration, the Executor has more freedoms to carry out his or her duties without harsh oversight by a probate court. Another important distinction in these cases in that an Executor is not required to post a bond, or insurance policy, for the estate.
This process can vary greatly when someone has died without a will. The probate laws in Texas usually require that the estate fall under more strict oversight by the court. This is referred to as Dependent Administration. In these cases, the administrator must post a surety bond and seek court approval for every step in the process of distributing an estate. Additionally, they must maintain and file reports every year with a Texas probate court regarding the estate.
Different Ways to Probate a Will
Muniment of Title is another way you can probate a will in Texas. This process can be utilized when a valid will exists, Medicaid has no claims against the estate to recover benefits the decedent may have received, and the estate has no debts except secured real estate. In these situations, the court has to decide 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. While no Executor is appointed, the person who requests 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 is absent a will and the value of their estate is equal or less than $50,000, 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
At some point throughout their lives, most everyone will experience the probate process for a loved one’s estate. However, there are cases in which this can be avoided. The following are considered Non Probate Assets in Texas and can be transferred to the beneficiary without probate:
- Funds from life insurance policies
- Survivor benefits from an annuity
- Bank accounts that are payable upon death
- Property held as joint tenancy with right of survivorship;
- Community property held with right of survivorship;
An Overview of the Steps
While the probate process will vary alter from case to case, or possibly county to county, below is helpful list of steps about the probate process.
Step One: Filing an Application for Probate
An application for probate must be filed with the correct Texas probate court in the county where the decedent resided whether a will is present or not. This step is usually fairly easy to start.
Posting & Citation
Posting, formally known as Posting Notice of Probate Administration, is a process which usually takes roughly 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. This will serve as notice to anyone who may contest the will or administration of the estate. If no contests are received, the probate court will move forward with opening the administration.
Additionally, there are situations where another party has to be served with citation. Texas law requires this in situations where probate dispute is likely. The citation puts those with an interest in the estate on notice that they need to stay apprised of the goings on and be present in court to represent their interests if needed.
Validating the Will
After the two-week posting period, a Texas probate judge from the respective county will preside over a hearing. This judge will legally recognize the decedent’s death and the jurisdiction that the court has over the case; verify that the decedent had a valid will or that there was no will; and, finally, appoint an administrator or verify the person named as Executor.
Inventory of Assets
After an executor or administrator has been named to the estate, the appointed individual must catalog and report all the assets held by the estate to the county clerk within 90 days. 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 carefully compiled. It requires a complete and proper descriptions of the various estate assets together with reasonably accurate valuations of these assets as of the date of death. The detail of this catalog depends on the following:
- Whether or not there is likely to be any question(s) of assets owned or values by beneficiaries or creditors
- The complexities of the specific estate
- Other variables can apply
For independent executors, there is an exception to the filing rule. 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 outstanding debts and that all estate beneficiaries have been given a copy of the Inventory. This exception exists to protect the decedent’s privacy by keeping their assets from appearing in a public record.
In the event that the decedent had a valid will, the Executor will notify beneficiaries of the estate. If there was no will was filed, the probate court is charged with determining heirship in Texas.
All heirs must be personally served with the application or sign the application. If the deceased may have potentially unknown heirs, the court requires that notices be posted at the courthouse as well as in newspapers.
Applicants must be able to prove the truth of the details in their application. Written as well as oral testimony is sometimes needed.
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, and they must be resolved out of their estate. Some examples include medical bills, mortgages, household expenses, etc. These are paid from the estate. However, before they are paid, creditors must be notified of the decedent’s death by the estate’s Executor and given the opportunity to file claims against the estate. This can be done by publishing a notice in the local newspaper.
An estate cannot be finalized in Texas if family members or potential beneficiaries contest a will or if they file associated grievances. A probate court judge must hear these disputes.
If you are contesting a will, it must be done within two years of the original probate in the state of Texas. A legal representative is necessary to direct and guide you through the dispute process whether you are the complainant or not.
A person contesting a will is required to prove that there is something wrong with the will that it is invalid. There are many ways that a will can be deemed invalid, including but not limited to:
- There were multiple wills executed
- Proving the will was a forgery
- The will was improperly executed
- The will was forced due to excessive influence by a third party
Many people contesting a will in Texas never get to court. In these cases, mediation often resolves the conflict. While less common, occasionally the dispute never even makes it to a mediator because the issues are settled out of court between the family and their attorneys.
After the debts and expenses of the estate as well as any contests of the will are resolved, the remaining assets of the estate are then distributed to the beneficiaries that were previously determined.
Experienced Probate Attorneys
We are experienced probate attorneys in San Antonio. If you need help probating a will, we want to hear from you. Use the links below to schedule a free consultation.