Most people have heard the term “trust,” “revocable living trust,” or “family trust.” Perhaps they have heard friends talk over a dinner …
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 decedent is the deceased person whose estate is to be resolved.
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.
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:
- Legal recognition of the decedent’s death
- Verification of a valid will or that there is no will
- Appointment of the will’s executor or of an administrator
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
Why would you want to avoid probate?
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.
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.
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's level of professionalism and care is outstanding. Steve has participated in numerous community events and each time, he blesses his audience.
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!
The Manchester Living Podcast’s Brian Levy recently hosted Jeff Kort, a Dallas-area financial advisor, and myself, Steve Holman, to discuss the ins and outs of elder law. You can watch the video right here, or look below for 5 important takeaways from our conversation.
The letters tell banks, creditors, and others that you’re the person the Court has placed in charge of the estate. You’ll need to present the letter of testamentary along with the death certificate to show that you have the authority to act on the estate's behalf.