Probate is often a mysterious legal term that one doesn’t know about unless they have had to deal with it. For example, when you are named in your unmarried aunt’s Will as the executor, and then were thrust into the center of the family 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, and 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 the deceased had a Will, do you always need to probate? No. Beneficiary designations — life insurance, pay on death designations on bank accounts, naming a beneficiary on retirement accounts, for example supersedes the terms of the Will.
Also, if you have a joint account with the right of survivorship, then probate is not needed for this account transfer, it will automatically pass to the survivor.
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? That depends.
For example, if there is a trust that holds all 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 come forward to file an application to determine the heirs and appoint the agreed upon heir to manage the probate.
How long do I have to probate a Will? Generally, four (4) 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 a 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 need to be transferred are minimal, is there a simpler way?
Under Texas law, if the assets are under $75,000 then the surviving spouse 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 or personal representative.
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 who will speak to the family history of the deceased are needed.
How long does the probate process take? This depends on several things. Is there 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 no 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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