What Is the Process for Filing Probate in Texas?

When a person passes away here in Texas, their estate is processed in the probate court. The courts make sure that all the estate is properly inventoried, that all debts and taxes are paid, and finally that the assets of the estate go to the decedent’s beneficiaries exactly according to their wishes. A probate attorney in San Antonio, TX can help you get through this process as smoothly as possible. And if you want to minimize the effect of probate for your loved ones after you pass, the time to plan your estate is now.

What Is the Process for Filing Probate in Texas?

Determine Whether Probate Is Required

There are two things to investigate here. First, you want to see whether the assets have to go through probate at all; then you evaluate whether the estate is small enough that the whole thing can avoid probate.

Assets that Pay Out Directly

Some assets go directly to the beneficiaries, and if that’s mostly all the estate has, then probate will not be necessary. Non-probate assets include life insurance policy payouts (unless the estate is the beneficiary), retirement funds that automatically go to a spouse upon death, bank accounts that have an automatic transfer to a beneficiary, and anything that the deceased owned jointly with someone else that has right of survivorship. If you’re unsure, talk to your lawyer.

Real Estate

Real estate can also pass directly to another person if you have something called a Transfer on Death Deed. This allows the property to go directly to someone else, but it’s important to understand that this deed does not protect the real estate from any liens that may be put on it by creditors or from debt like a mortgage. In order to inherit the property, the beneficiary must survive the decedent by no fewer than 120 hours.

If you’re not sure whether you have a Transfer on Death Deed, it’s important to talk to a lawyer quickly. A Life Estate Deed is somewhat similar. When one of these is in effect, then another person, usually a spouse or disabled child, retains the right to live on the property until their death. After their death, the property then goes to the beneficiaries of the original estate.

Cars and Trucks

Small Estates

Once you’ve evaluated what doesn’t need to go to probate no matter how large or small the estate is, it’s worth considering whether the entire probate process can be skipped if you have a small enough estate. If there is no will, no one has applied to administer the estate, they are either no debts or there are enough assets to pay the debts, all the heirs agree on how things will be distributed, the total assets are $75,000 or less, and there is no real estate other than the Homestead, then all you have to do is file a small estate affidavit. If there is secured debt on the Homestead, such as a mortgage, this will not stop an estate from going through the small estate process in most cases.

The court will look over this, and, assuming it gives approval, will allow heirs of the estate to collect their assets without any formal process. But the affidavit from the court approving the small estate process will have to be included with the property records for the Homestead and so must be filed with the county clerk where the property is located.

Filing for Formal Administration With Your Probate Attorney in San Antonio. TX

If the estate must go through formal probate, then the first step is to talk with a lawyer to get the help that you need with all the legal steps. If the estate is contested, things can get extremely messy. But even if there are no contests and minimal court oversight, probate always includes an enormous amount of paperwork. Any mistakes can set back the timeline for the beneficiaries to get their inheritance by weeks and even months. A lawyer can help keep things moving smoothly and also shoulder some of the more frustrating tasks.

Filing

The first step is to send the will, death certificate, and a properly filled out application to the probate court in the same county as your loved one lived and formally request that the court appoint an executor for the estate. If the will specifically names an executor, then that person will typically be chosen unless there is some very compelling reason why they should not be. Otherwise, the court will appoint someone appropriate; usually a family member.

Hearing

The court will schedule a hearing to give everyone interested in the estate an opportunity to challenge the will and the appointment of the executor, if they wish to. You will have to send notice of this hearing to all the beneficiaries who are named in the will and to anyone who stands to inherit under state law if there is no will. All creditors of the estate must also be notified.

If there are no objections to naming the executor, then the hearing process is really quite simple, and you may not even need to attend. Your lawyer can take care of this process and get the Letters Testamentary for you. These letters give you the legal authority to manage the assets of the estate.

There can be a few other formalities, depending on the estate itself. You may have to post a bond, which is a type of insurance against mismanagement of the assets. Then it may be necessary to validate the will, which just means to prove that it’s real. If the will was created with the help of an estate attorney, this should be a very simple step.

Paying Debts and Taxes

The executor will pay any creditors who are owed money from the estate. This would include paying all credit card debt, funeral expenses, utilities, etc. All taxes also need to be paid. During this time, the executor will also need to properly inventory and get an evaluation for all the assets, so it’s clear exactly what the estate is worth as well as what each individual asset is worth.

Distributing Property and Closing the Estate

Once all the assets have been properly inventoried and their full value is known, and all debts and taxes are paid off, the executor’s final job is to distribute all the remaining assets to the beneficiaries. If there is a will, this needs to be done precisely in accordance with the decedent’s wishes as expressed in the will. If there is no will, this distribution will follow Texas intestacy laws.

Then it’s time to close the estate, and this must be done by filing a request to close with the court. The court will require an accounting from the executor detailing everything that was done and to clear up any discrepancies. For example, if an asset is sold for less than it was originally valued, you would need documentation showing why it declined in value.

This is just a broad overview of the probate process. Things can get very complicated, but we can help. Talk to us at the HGC Law Firm in San Antonio today.