Probate is often a mysterious legal term that people don’t know about unless they have had to deal with it. An example is when you are named on your unmarried aunt’s will as the executor, and then are thrust into the courts to settle the estate.
Let me answer some common questions about the probate process under Texas law, which hopefully might remove some of the mystery.
• What is probate?
Probate is the process where the court confirms death, determines who has the authority to collect assets of the estate of the deceased person, pay creditors of the estate and distribute the assets of the estate either under the terms of a valid will or under the laws of intestacy (if deceased had no will).
• If deceased had a will, do you always need to probate?
No, beneficiary designations (i.e., life insurance, pay on death designations on bank accounts, naming a beneficiary on retirement accounts, etc.) supersedes probate laws. Also, if you have a joint account with right of survivorship, then probate is not needed for this account transfer.
• If I’m married and the only assets are a house and cars, do I have to probate my deceased spouse’s will if I am the only beneficiary?
It depends. For example, if there is a trust that holds all of the deceased person’s assets, probate may be avoided. The community property home is a common reason for the need to probate. Frequently, there is no right of survivorship agreement with the titling/deed of the home. The court ordered probate creates the legal transfer of ownership to the surviving spouse.
• Whose duty is it to probate?
If the deceased had a will, the executor or personal representative named initiates the probate process. If there is no will, an heir of the deceased should file an application to determine the heirs and from there, and the court will appoint an attorney (called an attorney ad litem) to determine who all the legal heirs are.
• How long do I have to probate a will?
Generally, four years from the date of death. There are some allowable exceptions.
• What are “letters testamentary?”
They provide the legal authority for the executor to act on behalf of the deceased person. For example, assets such as stocks and bonds can be in individual accounts which may not have a designated beneficiary. In such case, the financial institution would then require letters testamentary from the executor to transfer these accounts. Letters Testamentary give the Executor authority to work with financial institutions, taxing authorities, creditors, and debtors of the estate. If there is no will, an interested party will be named as the dependent or independent administrator and receive Letters of administration that work in the same way.
• If assets of the deceased that need to be transferred are minimal, is there a simpler way?
Under Texas law, if the assets are under $75,000 then the heirs and two disinterested witnesses could sign and submit a small estate affidavit. This is helpful when there is no Will and little or no debt of the deceased.
• Do courts require an attorney to probate a will?
In almost all cases an attorney must assist the executor.
• What information do I need to prepare for a probate application?
The original will, if available, death certificate, Social Security and driver’s license numbers of executor and deceased, statements of accounts, secured creditor information and deeds are the first places to start. If there is no will, the names and contact details of at least two disinterested witnesses that will speak to the family history of the deceased.
• How long does the probate process take?
This depends on several things. Will there be a contest between the beneficiaries? Are there creditor claims of the estate? How extensive is the estate, how long will it take to identify and gather the assets? However, generally if there are not issues, the process often takes less than six months.
This article is provided by the Law Office of Lasca A. Arnold PLLC.
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