Probate is defined as the official proving of a will. To probate a will is to establish the validity of it in a court of law. The definitions sound simple, but the process may not be without adequate legal counsel.
Probate laws are not standard and can vary from state to state. However, in general, probate is a legal process in which a deceased person’s estate is ultimately distributed to heirs or beneficiaries and their debts paid to creditors under court supervision.
In the state of Texas, estate is considered to be the total assets owned by an individual at the time of their death. These assets can include but are not limited to life insurance, retirement accounts, stocks, bonds, real estate, cars, cash, and more.
What Is The Purpose of Probate?
The purpose of probate is to fairly and lawfully handle and distribute a deceased individual’s estate. If the deceased had a will, Texas law specifically requires that the person’s property be gathered, debts paid, and assets distributed according to state law and directives specifically listed in the will. If the deceased did not have a will, a different procedure is in place to determine which, if any, family or beneficiaries will inherit part of the estate.
When To Use Probate
Unfortunately, leaving a detailed will does not keep loved ones from avoiding the probate process. In many cases, the probate process is in place to protect loved ones left behind. The state of the deceased’s residence at the time of death will most likely determine if and when probate proceedings are required.
Typically probate is needed if the deceased’s assets are listed solely in their name or if a will is deemed invalid or unclear or is contested by another party. If the deceased did not have a will, probate is generally required to manage the fair distribution of their property.
How Does Probate Work?
After an individual passes, typically a person close to the deceased provides proof of an existing will to a court in the county of the deceased’s residence. Most often this person is selected in advance by the deceased before their passing to act as will executor and tend to end-of-life affairs.
If no will exists, usually a spouse or child can ask the court permission to act as will administrator. In this case, because a person was not designated as executor prior to the loved one’s passing, if more than one person contends to be the will administrator, courts have the right to appoint a fair, neutral public administrator whose fee will be paid by estate funds.
Will executors and administrators must file probate at the court clerk’s office and present a certified copy of the deceased’s death certificate. In Texas, executors and administrators must wait about two weeks to set a date for proceedings so that the county clerk has ample time to post a notice that an application has been filed for probate. This allows anyone wanting to contest the will or administration sufficient time to do so.
In addition to posting a notice at the courthouse, Texas requires a notice to be published in a newspaper to notify possible creditors in the county of the deceased’s residence. The notice should include the executor’s name, attorney’s address, and directions for filing a claim against the estate.
If no one contests the will or they contest the will and fail during that two week period, the court can move forward with setting a court date for the potential executor or administrator to stand in front of a judge, provide the will, and request to be officially appointed. In most cases, Texas courts require this person to be represented by legal counsel to assure they are efficiently able to fairly carry out their obligations to the deceased.
Texas law gives executors and administrators ninety days after being officially appointed to inventory the deceased’s estate and assets. These assets can include a last paycheck, life insurance, and retirement funds to name just a few. Bank accounts and stocks may well be one of the easiest things to inventory since the items have account numbers and balances that are readily available and measurable. Other estate assets such as special antiques or unique one-of-a-kind collections may require professional appraisal before dollar amounts can accurately be assigned to that inventory.
Once a dollar amount has been assigned to all estate items and assets, executors and administrators should seek legal counsel in paying unpaid bills and estate expenses, as well as confirming their validity. In cases where estate funds are unavailable, executors and administrators are typically not responsible for the deceased’s unpaid bills and estate expenses. Often the state will set aside a portion of the estate’s finances first and then pay any remaining debts.
When Does Probate End?
Only when all debts, expenses, and claims are settled can the remaining property by distributed according to the wishes of the deceased as stated in the will. The executor can then make cash disbursements and transfer physical property and investments to the appropriate beneficiaries. If the deceased had no will, a court will determine the identity of the deceased’s heirs. Should the court-identified heirs disagree on the distribution of assets, the court will then take responsibility for resolving those disputes. Once the judge signs off on the final settlement, the estate is effectively gone and there is no more need for an executor or administrator.