Probate & Estate Administration

When a person dies – whether or not there was a will in place – their estate must be settled according to Texas law. There is a formal process for settling an estate, which is called probate. This legal process is simply a way to protect the person who died (referred to as the decedent), his or her beneficiaries, creditors the decedent may owe, and anyone else who may have a claim against the estate.

What Is Probate?

Probate is the legal process used to recognize someone’s death, settle any outstanding debts, and distribute their assets to those designated in their will and/or through any other estate planning means. This process is done in probate court and overseen by a judge. The court’s role is to facilitate this process and protect the deceased’s wishes, the rights of the beneficiaries, and the interests of creditors. The process of setting an estate is commonly referred to as probate administration.

People frequently ask how to avoid probate because they hear horror stories from other states. The reality is in Texas probate is relatively fast and cheap, and almost always costs less than other more complicated options, such as setting up and maintaining a living trust.

Who May Be Involved in the Probate Process?

In the probate process, there are several people or entities that may play a role:

The executor, who is selected by the deceased, and is responsible for managing the estate until the assets can be distributed
The administrator, who is appointed by the court if a person dies without a will or if the executor is unable to serve in the role, and acts in the same capacity as an executor
The beneficiaries named in the will, who stand ready to inherit the estate’s assets (or those designated by Texas law to inherit assets when there is no will)
Interested parties who may have a financial stake in the process, but they are not named in the will (everyone with a potential financial stake is considered an interested party)
Creditors who are owed money by the deceased
Real estate investors who need to “quiet” title in a property or know who holds the other part of a property in a common tenancy

Any one of these parties may need their own attorney in the probate administration process to help protect their interests. The more complex the estate or legal issue attached to the estate’s assets, the more likely it would be that you would need an experienced attorney to individually represent you.

How Probate Administration Works

When you die, all of the detailed wishes included in your will are not automatically executed. Instead, your will and your estate must be probated before your beneficiaries are eligible to receive the assets of your estate. The probate process consists of a number of steps, including:

The executor files an application in the appropriate probate court (usually the county in which the person lived)
The county clerk posts a notice of the probate proceedings, which must remain posted for at least 10 days
A hearing takes place before a probate judge, who confirms the person applying to be the executor is fit to serve in this capacity or appoints an administrator to the estate if no executor exists or the named executor is unable to serve
At the hearing, the will is also validated to confirm it is the person’s last will and testament and that it was correctly executed and witnessed
Once the hearing is completed, the executor or administrator has the authority to act on the estate’s behalf

Once the hearing is completed, the estate is ready to be divided and passed on to the beneficiaries per the guidelines outlined in the will.

Challenges that May Arise During Probate and Estate Administration

In some cases, even if your loved one had a will, issues may arise. The probate process can subject you to a number of unpleasant surprises. Here are some common challenges that may arise during probate proceedings:

The will is contested by an interested party
There is a dispute over the value of the estate
An unexpected creditor shows up with a large debt owed to them that impacts the amount beneficiaries will inherit
There are allegations the executor has breached their fiduciary duty to the beneficiaries
There may be mistakes in the probate paperwork
The person who the will names as executor does not want to or is unable take on the responsibility

All of these issues can be addressed with the help of a probate and estate administration lawyer. The attorneys at Towson Law are well-versed in navigating any challenges that may arise, and will assess your specific situation.

When a Deceased Person Does Not Have a Will

In some cases, the deceased person may have died without a will, complicating things for their loved ones. The assets will still be distributed to heirs, but now Texas law will take over the situation. More time and uncertainty will be added to the estate administration process.

Creditors May Be Involved in Probate

Creditors will have their own interests in the probate process. Creditors include any person, business, or entity owed money by the decedent. There are two types of creditors: secured or unsecured. Secured creditors include any with a claim secured by a mortgage, deed, or property lien. Unsecured creditors include credit card companies or personal loans.

Click here to read more about claims against an estate by creditors.

Frequently Asked Questions

Do all assets have to go through probate?

The short answer is no, not all assets are subject to probate. Bank accounts often have a Transfer on Death (TOD) or Payable of Death (POD) option, which means the money automatically goes to the named beneficiaries on the account holder’s death. Other accounts such as insurance policies, IRAs, pensions, 401(k) plans, and more are also often exempt from probate. Because different types of assets have different rules under the Texas Estate Code, it’s important to speak with an estate planning attorney to understand your available options.

What if the estate is small?

Depending on the size of the estate, the full probate process may not be necessary. There are simplified procedures for smaller estates that allow them to skip the full court process. If the value of an estate’s assets – excluding a homestead property – is less than $75,000, then it may be eligible for a Small Estate Affidavit in Texas. A beneficiary can file the affidavit with the probate court to expedite the probate process and bypass several of the estate administration steps. Contact Towson Law if you think this might be the right option for your situation, and we can help you determine if a Small Estate Affidavit is appropriate.

What is a Muniment of Title?

If a testator’s estate does not owe any unsecured debt and the only assets of the estate are real property and cash accounts, the will may be eligible for a Muniment of Title. When a will is probated as a muniment, there is no executor or administrator appointed to the estate. It is therefore often a faster form of probate. If you are considering probating a loved one’s will in this manner, it must be done within four years of their death.

Call a Texas Probate and Estate Administration Attorney Today

If you expect that there may be legal issues involved in your particular probate process, you should contact a wills attorney early in the process. Towson Law works with various parties involved in the probate process to help protect their interests. Call us today at (817) 856-0270 or contact us online to discuss your legal matter.