Probate Basics In Texas: What You Need To Know

The procedures of probate can be complicated and difficult to understand. Even after you have read several articles on probate, it is perfectly reasonable if you are still feeling confused. If you have questions about probate, this article delves into details about the probate process in Texas that will provide answers for you about:

• Which of your assets must go through the probate process, and which assets are typically exempt from probate.
• The step-by-step process of probate, and the streamlined probate procedures that Texas offers for smaller estates.
• What you should know about probate if you are a family member involved in the probate process for a deceased loved one.

What Assets Typically Go Through Probate?

Assets that usually must go through probate include:

1. Solely-Owned Property: This includes real estate, vehicles, bank accounts, and personal property owned solely by the deceased without a designated beneficiary.
2. Intangible Personal Property: This can include stocks, bonds, business interests, and other financial assets if they are owned solely by the deceased without a designated beneficiary.
3. Tenant-in-Common Property: If the decedent owned property as a tenant-in-common with others, their share of the property might be subject to probate.

What Assets Typically Do Not Go Through Probate?

Certain assets are generally not required to go through the probate process. These include:

1. Jointly-Held Property: Property held as joint tenants with the right of survivorship will typically pass directly to the surviving owner(s) outside of probate. For example, if you own an equal share of property with your spouse, your share of the property will likely pass to your spouse after you are deceased.
2. Designated Beneficiary Assets: This includes life insurance policies, retirement accounts (like IRAs and 401(k)s), and other financial assets where a beneficiary is named. Upon the owner’s death, these assets will typically pass directly to the designated beneficiary. If you hold any of these types of assets, it is important that you name a beneficiary so they can avoid probate.
3. Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts: Bank accounts, securities, and some other assets can be designated as POD or TOD, meaning they automatically transfer to the named beneficiary upon the owner’s death.
4. Property in a Living Trust: Assets held in a living trust bypass probate and go directly to the named beneficiaries of the trust. An estate planning attorney can help you understand how to create a living trust or other types of trust to assist with easing the probate process.
5. Homestead Rights: In Texas, a surviving spouse or minor children may have the right to occupy the homestead property without it going through probate.
6. Community Property with Right of Survivorship: If a married couple in Texas has an agreement to own property as community property with the right of survivorship, the surviving spouse will typically inherit the property without probate.

Are There Specific Probate Procedures For Smaller Estates In Texas?

If you are a resident of Texas, you should know that Texas offers streamlined probate procedures for smaller estates, making the process simpler and faster for eligible estates.

1. Affidavit of Heirship: If the decedent did not leave a will and the estate primarily consists of real estate, heirs might be able to file an Affidavit of Heirship in the county where the property is located. This document, signed by disinterested witnesses, identifies the heirs and allows for the transfer of the property without formal probate.
2. Small Estate Affidavit: If the decedent died without a will, and the estate’s value (excluding homestead property and exempt property) is $75,000 or less, the heirs might be eligible to use a Small Estate Affidavit. This document is filed with the court, and, if approved, allows the heirs to distribute assets without formal probate.
3. Independent Administration: While not limited to small estates, Texas law allows for an “independent administration” of an estate. If the will specifies or if the heirs agree, this process lets the executor administer the estate with minimal court intervention, making the probate process more efficient.

What Is The Probate Process In Texas?

The steps involved in the probate process in Texas include:

1. Filing of an Application: The process begins when someone files an application for probate with the county clerk in the county where the decedent lived. Typically, this would be the executor named in the will, or an heir if there is no will.
2. Waiting Period: Texas law requires a waiting period of at least two weeks after the application is filed before a hearing can be held. During this time, a notice will be posted at the courthouse announcing the application to probate. However, it is typical to wait three to four months before a hearing is scheduled.
3. Probate Hearing: After the waiting period, a hearing will be held. If everything is in order, the court will grant an order admitting the will to probate and/or recognize the individual’s authority to act on behalf of the estate (either as executor or administrator).
4. Issuance of Letters Testamentary or Letters of Administration: These are official documents issued by the court that grant the executor or administrator the legal authority to act on behalf of the estate.
5. Notification to Creditors: The executor or administrator must publish a notice in a local newspaper to inform potential creditors of the decedent’s passing. In Texas, creditors typically have a limited time (usually four months) to present their claims against the estate.
6. Inventory, Appraisement, and List of Claims: Within 90 days of being appointed, the executor or administrator usually must provide the court with an inventory of the estate’s assets, their estimated value, and any claims against the estate. However, if the estate is being administered independently, and all the heirs agree, this step can sometimes be bypassed.
7. Settling Debts: The executor or administrator pays valid claims and debts from the estate’s funds.
8. Distributing Assets: After all debts and expenses have been paid, the remaining assets are distributed according to the will. If there is no will, they are distributed according to Texas intestacy laws.
9. Closing the Estate: Once all tasks are completed, the executor or administrator can file a final account or an affidavit with the court and request an order to close the estate.

What Is Important For Family Members To Know About The Probate Process?

If you are a family member involved in the probate process for a deceased loved one, there are some things you should know about probate. Understanding some of the probate proceedings will help the process run more smoothly for you and everyone else involved. Here is what you should keep in mind about probate:

• Executor’s Role: Understand that the executor (if there is a will) or the court-appointed administrator has a fiduciary duty to manage and distribute the estate’s assets responsibly and according to the law. This is why hiring a lawyer is required, not optional.
• Independent vs. Dependent Administration: Texas offers “independent administration,” where the executor can act with minimal court oversight. This can expedite the process. Conversely, “dependent administration” requires more court involvement, which can be useful if disputes are anticipated or if there are minor beneficiaries.
• Rights of Surviving Spouses: In Texas, surviving spouses have certain rights, including homestead rights, which can allow them to remain in the home even if it has not specifically been left to them in the will.
• No Will: If the decedent did not leave a will, the estate will be distributed according to Texas intestacy laws. These lay out a specific order of inheritance based on familial relationships.
• Attorney Assistance: Given the complexities of probate, many families find it beneficial to work with a Texas probate attorney to ensure the process is handled correctly. In addition, an attorney can answer any questions you may have about probate law or proceedings.
• Potential Disputes: If there are disputes or contests regarding the will or the distribution of assets, the process can become more prolonged and complicated.

For more information on Assets Subject To Probate In Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (956) 513-1117 today.