Frequently Asked Questions About Probate In Texas

Is Probate Always Necessary?

No, not always.  But if there is a will, submitting the will to the local probate court (this is not filing for probate) is mandatory.  If there is real estate involved, or titles to vehicles which need to be changed, or perhaps, if there are bank accounts which need to be allocated pursuant to a will, then yes, probate is definitely the route which you should go.

Is Probate Expensive?

Relatively speaking, no.  In cases where there are few debts to pay and a well-drafted will, then probate will not likely cost more than the beneficiaries are willing to pay for the peace of mind granted by having a will admitted to probate.

How Fast Can We Do Our Probate Case?

If you mean “fast” as a means of putting up a property for sale, then the answer might be “as fast as a month or two.”  If you mean to ask long will it take for it all to be over?  Perhaps, you might need to understand that probate does not necessarily ever have to end.  Many lawyers keep the probate open in the event that a newly discovered piece of property belonging to the estate needs to be distributed to the rightful heir.  There is no harm in keeping a probate case open forever.

How Many Types of Probate Are There?

In Texas, there are primarily two types of probate of a will.  An administration (either independent or dependent) and a probate of a will as a muniment of title only.  The former anticipates the need to manage estate property, or perhaps, pay debts off.  The latter is primarily used for getting the property into the right hands without any need to manage property or to pay debts.

What Is An Independent Administration?

The horror stories about lengthy and expensive probates generally arise from non-independent probate administrations.  In Texas, the legislature has made a “fast-track” style of probate which allows the executor to handle all of the important aspects of settling an estate without the need for constant court hearings, and mounting lawyer fees.

Steps of Texas Probate

Step 1

Typically, the named executor will file an application for probate the Decedent’s will. Probate is conducted in the county of the Decedent’s last residence, or where the Decedent has substantial assets.

Step 2

Following the filing of the probate application, the county clerk will post a notice at the courthouse to notify all that a probate application was filed. Where no contests are filed against the application, the probate court will conduct a hearing on whether to accept the will to probate, appoint an executor, and open an administration of the estate.

Step 3

After an executor or administrator is named to the estate, he or she will normally be required to file an inventory of all the assets in the estate within 90 days of appointment. The executor must swear that the inventory is accurate to the best of his or her knowledge.
The Inventory must include sufficiently detailed descriptions of the estate assets together with reasonable valuations of such assets. 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 instead of an inventory.

Step 4

the executor will notify beneficiaries of the estate. In place of receiving formal notice, beneficiaries may also sign waivers of service. At any rate, the executor will be required to certify to the court that all beneficiaries have been given proper notice.

Step 5

Because Decedents usually pass with outstanding bills, therefore, in addition to the beneficiaries, secured creditors are also entitled to receive notice of the probate proceeding. Unsecured, or non-lien creditors, do not necessarily receive formal notice (other than published notices in the newspaper), but their claims, if timely filed, will need to be addressed by either accepting their claim, which requires an attempt to pay, or by rejecting the claim (putting the ball into their court to prove the validity of the claim).
All valid debts must be paid from the estate. Typical debts include expenses of the last illness, medical bills, mortgages and other personal debts.

Step 6

The estate cannot be concluded if family members or other potential beneficiaries are contesting a will, or if they file for your removal as executor. These disputes must be decided by a probate court judge.
In the state of Texas, contesting a will must be done within two years after the original probate. Good legal counsel may be necessary to direct and guide you through the dispute process.
The person contesting a will must prove that the will is invalid or that there is something wrong with it. There are several ways that a will can be determined to be invalid, including: proving that the will was forged; that the will was the result of undue influence on the Decedent; that the Decedent was incompetent at the time of signing; that the will was not properly endorsed; or that another document is perhaps the true will of the Decedent.
In lieu of going to court, many people contesting a will often find that resolving conflict with the other parties is a great alternative to litigation in Texas probate.

Step 7

After the disputes are resolved, any remaining assets are then distributed to the beneficiaries as provided for by the will.

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