Probate is a legal process that only takes place when someone dies. It requires court involvement and special rules depending on whether the deceased had a will. When a will is used to transfer property at death, probate is necessary to make the will transfer legal. Most people have a general idea about the process, but often have more specific questions when dealing with the death of a loved one or planning how to transfer assets in the future.
Below are practical answers to the commonly asked questions about probate in Texas from clients of the probate and estate planning attorney at Towson Law Office. When you’re looking for reliable answers to legal questions, trust Towson Law Office for accurate and up-to-date information.
Is Probate the Same as Having a Will?
No, a will is a document, and probate is the legal process that must be undertaken to enforce transfers of property as directed by the will. In Texas, a will does not transfer any legal rights until it is admitted to probate.
Does Probate Happen Automatically?
No, probate must be initiated by an eligible applicant. The executor named in a will, a designated administrator, or another interested party can submit a probate application within four years of the death. After four years, if there is no legally acceptable reason for the delay, the will is considered invalid and the property of the deceased will be distributed as though there was no will.
Does All Property Have to Go Through Probate?
No, only property that is being transferred by a will goes through probate. Assets that can be directly transferred on death by designating a beneficiary, such as life insurance, bank accounts, retirement, and investment accounts, do not go through probate.
Some forms of joint or successive ownership also transfer property outside probate. Jointly owning property with survivorship rights automatically transfers a deceased person’s share to the surviving owners. Property owned by a trust can be transferred by the trust without going through probate.
How Long Does Probate Take?
A simple probate might be completed in a few months. A more complex probate may go on for years. The amount of property and the complexities involved in transferring it can slow the process down. Disputes among the beneficiaries can also extend a probate.
Muniment of Title
Texas does offer a more streamlined probate process if certain qualifying circumstances are met. If the deceased had a will and no debt other than liens on real estate, a muniment of title is available. If the muniment of title is approved, the court will not appoint an administrator and will suspend the usual probate process. However, the court may require a progress update within six months.
What Does Probate Cost?
The cost of probate is a combination of court costs, administrative expenses, and attorney’s fees. Court costs are approximately $400 in Parker and Tarrant Counties and are pretty similar across the state. Attorneys may charge by the hour or quote a flat fee depending on the amount of work anticipated. A simple probate could be a few thousand dollars, while a more complex case could be tens of thousands.
Does Property Go Through Probate When There Is No Will?
Property may have to go through probate when there is no will if the property does not transfer by another means, such as beneficiary designation or right of survivorship. The state of Texas will distribute any property left in an estate without a will according to its intestate laws.
The laws of intestate succession operate a little differently depending on whether the deceased person was married at the time of death. Texas is a community property state, so if a person dies without a will and is married, their one-half of community property typically passes to the surviving spouse. Non-community property is divided between the surviving spouse and the children of the deceased.
If an unmarried person dies without a will, the property will go first to any children, then to parents, then to siblings, and continues to more distant relatives if necessary.
Small Estate Affidavit
When someone dies without a will and the value of their estate is below $75,000, excluding homestead and exempt properties, the persons who are to inherit may submit an affidavit to the court. If the affidavit is approved, the applicants may distribute the estate without the appointment of a personal representative.
How Do You Probate a Will?
Probate in Texas begins with an application to the court and the appointment of an executor or administrator. That person must then inventory and value all assets, pay outstanding debts, and finally distribute the remaining assets according to the will.
The executor or administrator has a fiduciary duty to the beneficiaries and creditors of the deceased and may be exposed to personal liability if they fail to fulfill their responsibilities in a reasonable manner or act in their self-interest. It can be extremely beneficial for an executor who is also among the heirs to work with an experienced probate attorney to avoid the potential for conflict and prolonged delays.
Should I Avoid Probate?
You may have heard that probate is expensive, takes a long time, and puts all of a family’s personal business in the public eye. This may be true in some cases, but it’s certainly not true all of the time.
Choosing the type of estate plan that is right for you is often a matter of personal preference based on the property involved, family dynamics, and individual goals. Working with an experienced estate planning attorney can help you choose the asset transfer and distribution tools that fit your family.
Do I Need an Attorney to Probate a Will?
Yes, you most likely do need an attorney to probate a will in Texas. This is because the person appointed to administer a will is usually acting on behalf of more people than just themselves. It is possible to probate a will without an attorney if you are the only beneficiary.
Even if legal counsel is not required, it may be advisable to consult an attorney to ensure compliance with all legal requirements. Towson Law Office handles probate, estate planning, and family law matters in Weatherford, Texas, serving clients with compassion and excellence.