Probate is a legal process that settles a deceased person’s debts and legally transfers the remaining property and assets to the decedent’s heirs. Typically, an interested party (someone with a legal interest in the outcome) must initiate the process within four years of the date of death. Estates with large amounts of property or complicated property transfers may require a more formal process while simpler estates may be able to use a more streamlined distribution process.
The probate process transfers property according to the terms of an established will or estate plan. In the absence of these documents, probate court divides an intestate estate according to the local inheritance laws. A Texas probate lawyer can assist a personal representative in administering the terms of a will and handling the legal requirements of property transfers.
Does Probate Happen Without a Will?
Probate is usually necessary to transfer property owned by a single individual with a will (testate) or without a will (intestate). Texas offers less formal probate alternatives for transferring estates that meet certain qualifications. Married couples can also avoid probating community property at the death of the first spouse using a community property survivorship agreement.
Texas is a community property state. That means all debts incurred and all property acquired during the marriage belong to the community. Each spouse owns half of the property and shares responsibility for half of the debts. Your estate is distributed based on how the property is characterized, per the state’s intestacy laws.
Intestate Probate
When someone dies without a will, any interested party may petition the probate court and initiate the probate process. Estate property will be characterized as community or separate. Separate property includes any property belonging to a person before marriage and any property acquired during the marriage by gift, inheritance, or personal injury settlement.
A deceased spouse’s interest in community property will pass to the surviving spouse if the decedent does not have children outside the marriage. If the decedent has other children, the ownership interest in community property passes to the other children and not to the surviving spouse (or children of the marriage).
One-third of the property of an intestate estate typically goes to the surviving spouse and two-thirds to any surviving children. If there is no surviving spouse, the estate is distributed first to any children or their descendants. If no children or descendants survive, the property will be distributed to parents, siblings, and more remote relatives if necessary.
Is Probate Necessary to Transfer Property at Death?
No, probate is not necessary to transfer property at death if the decedent arranged for other legally enforceable means of transfer that can bypass the probate process. In Texas, one might transfer property at death without probate using the following means:
- Revocable Living Trust – Though managed by the individuals who create it, the trust is the owner of the property, and the trust documents can effectively transfer property at death.
- Transfer on Death Deed – Texas allows the owner of real estate to designate a beneficiary who will receive the property upon the owner’s death. The designation must be recorded in the county where the property is located before the transferor’s death.
- Joint Tenancy with Right of Survivorship (JTWROS) – Joint owners can agree that the share of any owner who dies is immediately transferred to the surviving owners. In Texas, joint owners must execute a written agreement to establish their intention to excercise survivorship rights.
- Pay on Death Beneficiary Designation – Bank accounts, investment accounts, life insurance, retirement accounts, and vehicles in Texas can all be transferred automatically at death by designating a beneficiary and following the required procedures.
Probate in Texas for Small and Debt-Free Estates
There are simplified probate processes for transferring the property of a person who died intestate and for probating a will when the estate is solvent.
Small Estate Affidavit
If certain qualifications are met, the heirs at law of a person who died intestate may settle the estate by submitting a sworn statement to the probate court. The primary qualifying circumstances to use the small estate affidavit include:
- The person died without a will
- A personal residence (homestead) is the only real property
- No debts are owed (excluding a mortgage on a personal residence)
- The value of all property other than the homestead and any exempt property is no more than $75,000
- 30 days have passed since the date of death
- An estate administrator or personal representative has not been appointed
The probate judge reviews the affidavit and approves it if it meets the statutory requirements.
Muniment of Title
An application to probate a will as a muniment of title may be submitted to the probate court when the estate of the decedent has no unpaid debts other than debt secured by a lien on real estate.
The court will allow the probate to proceed as a muniment of title if it is satisfied that there is no reason for the administration of the estate. The court’s order serves as the authority for beneficiaries to transfer ownership of property.
Can a Will be Challenged in Probate?
Beneficiaries of a will who are not happy with what they get or don’t get are not generally entitled to challenge the terms of the will. Only if there is a problem with the legal validity of the will itself can it be contested by an interested party.
Wills need to be executed with certain formalities. If those formalities are not followed, the will may be invalid. The person creating the will is also required by law to have the legal capacity to execute a will and must do so voluntarily.
Some of the reasons a will might be subject to legal challenge are:
- will was not properly signed or witnessed
- will was created based on deception
- will signature is a forgery
- the person creating the will was not mentally competent
- will was created under undue influence
- will was revoked before death
Even when a will is valid, issues can arise during the administration of an estate, such as disagreements over property valuations, mishandling of administrative tasks, or the discovery of unexpected circumstances.
A Texas Probate and Estate Administration Attorney Can Help Probate the Estate of Your Loved One
Probate is probably necessary if a person left a will or died without one. If you have lost a loved one and are not sure about the next steps to take, it’s best to speak with an experienced probate lawyer who can help you gather the necessary documents and determine what needs to be done to settle the estate. The probate and estate administration attorney at Towson Law Office, PLLC, serves the community of Weatherford, Texas, with compassion, integrity, and dedication.