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Probate

What Your Attorney Wants You to Know About Probate

Probate Definition and the Various Parties Involved

The definition of probate

Probate is the legal process of identifying a deceased person’s assets, paying their outstanding debts, and distributing their assets to heirs or beneficiaries. It involves a court proceeding and can take anywhere from weeks to years. A probate process is necessary to help distribute assets named in a will. Still, with proper planning, there are ways to avoid probate.

The State of Texas
The Decedent

The decedent is the deceased person whose estate is to be resolved.

The Executor

The executor is appointed to carry out the directives contained in a will. If a person died without a will, the executor resolves the decedent’s estate according to the Texas state law.

Beneficiaries and Heirs

Beneficiaries of an estate are those entitled to receive a portion of the assets of a decedent’s estate. Heirs are beneficiaries who are related to the deceased. Other types of beneficiaries include friends and charity organizations.

Creditors

A creditor is a person or entity who has a claim against the decedent’s estate and hopes to collect on bills and outstanding debts. For instance, a credit card company, a bank, or a medical institution can be a creditor.

Administrator or Personal Representative

An administrator is someone appointed by the court to sort through the deceased’s assets and debts and to carry out the directives of a will when no executor has been named. The administrator named is often an heir who was close to the deceased. But they could also be a creditor who is owed money or some other interested party.

The Step-by-Step Probate Process in Texas

Step 1: Locate Your Probate Court and File an Application

File an application for probate in the Texas probate court located in the county in which the decedent resided. You can find locations and the documents required for the Dallas County probate court system on the Dallas County website.

Step 2: Notice Period

The probate court requires notice to be posted for a certain period after the application is filed. During these two weeks, anyone wishing to contest the will may speak up. If no one does, Otherwise, the applicant may schedule a hearing.

Step 3: The Initial Hearing

After the notice period, an initial hearing will be held. You can expect the probate judge to accomplish three things during this hearing:

  1. Legal recognition of the decedent’s death
  2. Verification of a valid will or that there is no will
  3. Appointment of the will’s executor or of an administrator
This is also the time during which disputes over the estate may be heard by a judge. Disputes may include claims that the will was forged, that the decedent was pressured during his or her creation of the will, that the will was not executed properly, or that there was more than one will. Resolving disputes can take place out of court, either in mediation or between families and their attorneys.
 
Step 4: Reporting Assets

Within 90 days of his or her appointment, the executor or administrator needs to report to the county clerk all assets, how much they are worth, and any claims on the estate. 

This report goes into the public record. To maintain the privacy of the decedent and his or her beneficiaries, however, an Affidavit in Lieu of Inventory may be filed within 90 days instead—if there are no outstanding claims.

Step 5: Notifying Beneficiaries

If a will has been validated by the probate judge, the named beneficiaries are now notified that they are listed as recipients of the decedent’s probate estate. However, if no will was present, the probate court will determine who the beneficiaries are based on Texas laws about heirship. Interested parties may file proceedings during which their heirship will be determined.

Step 6: Addressing Creditors

The estates executor or administrator tells any creditors about the decedent’s death. According to Texas law, this communication may be simply a notice in the local newspaper. Creditors then have the opportunity to file claims.

Step 7: Distribution

After expenses, claims, and fees have been paid or resolved, assets may be distributed to beneficiaries.

What Types of Assets Fall Into the Probate Law Category?

The probate process only involves assets that fall within the decedent’s probate estate.

What is not included in the probate estate?

Any asset that has a named beneficiary—like a life insurance policy, a retirement account, or an asset held in trust—pass on outside of the probate process. Beneficiaries are usually named in these types of accounts when you first sign up for them, and may be altered at any time. 

Naming a beneficiary through such accounts means that these assets are passed on by contract rather than through a will. They therefore bypass probate and, in most cases, the court and the executors of the estate do not control how they are handled. This is also an important distinction for decedents who received Medicaid benefits during their lifetime, since Medicaid can only recover debts against assets in a decedent’s probate estate.

What is included in the probate estate?

Assets that do not have named beneficiaries or other contractual distribution instructions are part of the decedent’s probate estate. These assets will pass in accordance with a will or if there is no will, in accordance with Texas law.

How To Start The Probate Process

First, Try to Avoid Probate with Estate Planning

"As any probate attorney can tell you, there's a variety of reasons you should try to avoid probate. Estate planning will save your family and loved ones a substantial amount of time and money in the probate process."

Steven C. Holman, Estate Planning Attorney Tweet

Why would you want to avoid probate?

Save Money

Probate costs money in the form of court costs and attorneys’ fees, and this will come out of the assets your beneficiaries would otherwise receive.

Save Time

Probate takes time, sometimes years. Get your beneficiaries their assets more quickly when you avoid probate.

Retain Value

Over time, some assets may lose value or disappear. A car sitting in a storage unit, for instance, can lose value over time or simply drive off. Some stock value might evaporate without active management. Real estate must be maintained by paying property taxes and for utilities and repairs.

How to Avoid Probate

A good estate attorney will check to make sure that you’ve used direct ways to pass along your assets as often as possible. For instance, they can discuss any of the following options with you.

Name Beneficiaries

Name beneficiaries or fill in payable-on-death (POD) designations for all accounts that allow you to do so, such as stock holdings accounts. Note that payable on death designations override directives in a will (unless otherwise ruled by a judge).

Joint Ownership

Create joint ownership accounts for assets such as bank accounts, investment accounts, or real estate (include a right of survivorship on real estate joint accounts). This way, upon death, these assets will pass on to the co-owner rather than into probate. However, be sure that the co-owner is your intended beneficiary. If not, consider other estate planning options.

Use a Trust

Place assets in a trust, which is a certain kind of account in which a third party manages assets for the trustee with whom you are sharing the account.

Create a Transfer-on-Death or Ladybird Deed

Create a transfer-on-death deed or a lady bird deed on any real estate assets you own so that they may bypass probate.

Second, Simplify the Probate Process

Legal Tip: Obtain an Independently Administered estate to streamline the process

If you are unable to avoid probate (or if you want the protection of a probate-court-supervised administration due to concerns about disputes or fraud), you can still simplify the process as much as possible.

In Texas, there are two kinds of estate administration: independent and dependent. You can avoid the cost and hassle of heavy court involvement in your probate process if you ensure that your estate has an independent administration.

Independent Administration

In an independent administration, your executor will be able to carry out many of the steps in the probate process without checking in with a Texas probate judge after reporting assets. You can make sure that your estate has independent administration if you clearly name your executor as an independent executor in your will. Alternatively, all the beneficiaries can agree to an independent administration if they feel it is in their best interest, even if no executor is named.

Dependent Administration

However, in contentious cases, an executor must seek court approval for all actions taken on behalf of the estate—this is called a dependent administration. It is more costly and time-consuming than an independent administration, but there is one benefit: the court is there to ensure that all assets are fairly distributed, taking some pressure off the executor.

Use These Important Estate Planning Techniques Ahead of Time

Waive the Probate Bond Requirement

A probate bond is a guarantee that the executor will distribute the assets named in the will fairly and ethically. However, these bonds cost money and can be hard to secure. At the same time, they are required by Texas’s county probate courts unless the decedent’s will waives the bond requirement.

Keep Good Records of Your Assets

Keep a running list of your assets, including the real estate you own, your financial accounts, any significant personal property, any oil and gas interests, etc. This will help your executor easily inventory your estate and speed up distribution to your beneficiaries.

Need a Probate Lawyer?

We Can Help You Navigate The Probate Process

If you want to make sure that your estate is ready for probate, or if you have any questions about navigating the probate court systems in Texas, the Law Offices of Steven C. Holman are here to help. We specialize in elder care and estate planning, and we know Texas law. Contact Holman Law today and schedule a free consultation.

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Steve presented at Allen's senior center. He did a great job of communicating so effectively on a sensitive topic. He listened intently to all question and showed a sincere care for each attendee. I'm recommending him to all my friends who have estate planning or will needs.

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Atty. Holman was very thorough and answered all of our questions promptly. Most of the questions were via email, but he also spent time on the phone for the initial consultation, discussing our needs and reviewing documents after they were prepared. We never felt rushed or pressured. My wife and I felt completely comfortable and confident in his handling of our affairs. We highly recommend him !!

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Steve's level of professionalism and care is outstanding. Steve has participated in numerous community events and each time, he blesses his audience.

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Steve Holman did an outstanding job explaining complex estate matters to me and my 91 year old mother. He also helped us think through some sensitive non-legal, non-financial "elder matters" (like planning for a dignified exit and making sure her wishes were clear and codified). He is bright, energetic and has the perfect demeanor for constructively interacting with older folks. Hire him!

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