The first time you deal with the death of a family member and settling his or her estate, you will have to learn a lot of new information very quickly. One of the things you will have to get up to speed on right away is the Probate process. Fortunately, you and your family do not have to figure this out on your own. Our Probate attorneys are available to help with all aspects of settling a Texas estate, including navigating Probate court. Here, we provide basic information about the Probate process in Texas.
What Is Probate?
During the Probate process, the court will legally acknowledge a person’s death and oversee the payment of debts and distribution of assets. If the person dies with a Will, the Probate court must certify the validity of the Will by confirming that it meets the requirements of execution and that it has not been revoked or replaced by a more recent Will. If the Will cannot be validated or the deceased did not have a will, Probate court will oversee the distribution of assets according to state law.
Which Assets Have to go Through Probate?
Any property or assets that are not transferred to a beneficiary by other means will have to go through Probate before the heir can take possession. The following kinds of assets will pass directly to the beneficiary without going through Probate:
- Assets held in Trust. If the decedent had a Living Trust, the assets held in the Trust will pass directly to the named beneficiaries without going through Probate. In fact, many people set up Living Trusts for the purpose of avoiding Probate.
- Joint tenancy. Property, such as the family home, that names someone other than the decedent on the title will automatically remain in possession of the survivor. This is true for property owned by a married couple, or for unmarried people who have “rights of survivorship.”
- Beneficiary designations. Life insurance policies, retirement accounts, and other assets that have a named beneficiary will pass directly to that person without going through Probate.
- Transfer-on-death accounts. Bank and brokerage accounts can also name beneficiaries and, if the proper paperwork had been filed before the death of the account holder, those accounts will pass directly to the beneficiaries.
- Lady Bird Deed. This is a unique type of deed used to transfer property, typically a home, to beneficiaries outside of the probate process—and in a way that escapes the Medicaid Estate Recovery Program.
As you can see, if the decedent had a comprehensive estate plan, it is likely that the bulk of his estate will be transferred without going through Probate. However, if there is no Living Trust, or if the assets left outside the Trust exceed Texas’s small estate threshold, Probate court will be in your future.
Types of Probate in Texas
Your loved one’s estate will qualify for one of the following types of Probate:
- Muniment of Title. If there is a Will and the estate has no unpaid debt or other claims on it, it may be eligible for this simplified Probate procedure.
- Independent administration. About 80 percent of Texas estates are independently administered. In this process, the court approves or appoints an Administrator who will handle most of the steps required to settle the estate without court supervision.
- Dependent administration. If an estate is being contested, the court will have to supervise and approve each step the Administrator takes throughout the process. This is a much costlier and more time-consuming process but is necessary for certain situations.
Regardless of which type of Probate you are dealing with, a Probate attorney can ease the burden of your duties as an Administrator or Executor. It is our job to handle all of the filings and paperwork, to represent the Executor in court, and to represent your interests if a dispute arises.
