Probating wills in Texas falls under two categories: Independent Administration and Dependent Administration. It can become confusing trying to figure out which type of probate an estate falls into, if you are unfamiliar with Texas probate laws or Texas Wills & Probate Terms. These laws are governed by the Texas Estates Code.
Independent Administration in Texas Probate:
Most probate cases in Texas fall under Independent Administration. This process has either an administrator or executor who files an inventory with the Court of all assets and a list of people who owe money to the estate. After the inventory is filed, the executor or administrator can continue handling the estate without the approval of the judge.
Dependent Administration in Texas Probate:
Dependent Administration usually happens when there is a dispute between beneficiaries. This requires the Court to be much more involved in the handling of the Estate. The Court will appoint a dependent administrator to handle the estate, but the administrator must get approval from the judge for every step in the process. This can become costly for the estate to obtain approval throughout the process.
Types of Property in Wills and Probate
Separate Property is that which is owned before marriage. It can also include gifts received or inherited during marriage.
Community property is all remaining property that is not separate property.
So what qualifies as property in wills and probate? It includes real property such as, land, land improvements, and mineral rights. It also includes personal property such as, cash, bank accounts, clothing, home furnishings, automobiles, stocks and bonds, life insurance policies, and retirements accounts. It is important to note that many benefit policies will be administered to the beneficiary listed on the account. This property will not be dispersed to heirs if a beneficiary exists. A will also cannot settle any non-probate assets.
Non-Probate Assets include:
Property passing by contract (life insurance, IRA’s employee benefits), property passing by survivor-ship (joint bank accounts, joint stocks and bonds, and savings bonds), and property held in trust (trusts created by the decedent prior to death to care for another).
Time to File for Probate
People often wonder how long it takes to probate a will in Texas. State and local Court rules govern the amount of time it takes. The executor or the estate administrator will be required to follow these rules. Generally, you will be required to file an application for probate, then give notice to the public, creditors, and beneficiaries. It is important to realize that if an estate is extremely complex or if there is a dispute from either a creditor or a beneficiary, the process can take much longer to finalize. This is a general guide for an undisputed estate.
Texas Estates Code states that an executor of the will has four years from the date of the decedent’s death to file for probate. If the application is not filed within four years, then the estate could be subject to the laws of intestacy, meaning the estate could be handled as if no will existed.
After filing the application, the executor must wait at least 10 business before a hearing can be held. This gives the Court time to post a public notice that an application for probate has been filed.
This hearing is typically referred to as a prove-up hearing. This is where the judge will admit the will for probate.
If filing for Letters of testamentary, then the executor has 30 days from the date the letters are issued to file a public notice in the local newspaper. This notice is to notify all creditors of the estate that the estate has entered probate. This is usually unnecessary if filing for a muniment of title.
Texas allows 60 days after the will was admitted for probate for the executor to provide written notice to all beneficiaries. This notice must include a copy of the will and a copy of the order admitting the will for probate. This notice must be sent certified mail. After doing so, the executor will submit an affidavit to the Court stating that they have provided notice to all beneficiaries. This affidavit must be submitted within 90 days of the Court order.
Common Forms to be Filed
Affidavit of Heirship for a motor vehicle – Used to transfer the title of a vehicle to a beneficiary
Affidavit of Heirship – An affidavit of heirship is used to determine any heirs if a will is not left behind.
Small Estate Affidavit – Used to transfer property rights to any heirs.
If an estate is undisputed it can be a relatively simple process to probate a will in Texas. However, depending on the complexity of the estate it can become a long process. If you or a loved one need assistance or simply have questions about the probate process, please contact us to discuss the details of your situation. We understand the complications that can accompany these life events.