Texas Probate Information
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 to estate, but the administrator must get approval from the judge for every step in the process. This can become costly for the estate to sort out any indifference’s.
Other Texas Wills & Probate Terms:
In order to simplify the Texas probate process, it is important to understand all of the terminology that will be used throughout the process. Below are a few very common Texas Wills & Probate Terms.
Will: A Legal document where a decedent has outlined how they would like their assets to be disbursed between their loved ones.
Decedent: The legal term for the person who has died and whose estate is in the probate process.
Estate: An estate consists of all the assets, including, but not limited to, cash, real estate, stocks and bonds, life insurance policies, retirement accounts, vehicles and personal belongings.
Executor/ Executrix: A valid will names a person to serve as the executor (male) or executrix (female) of the estate. This person will handle all the necessary processes to finalize the estate.
Administrator: A Court will name an administrator to carry out the duties of an executor when a person dies without a valid will or executor.
Beneficiaries: The loved ones named in the will by the decedent or determined by a Court, who will receive assets from the decedents estate.
Many people do not understand the verbiage used in wills and probate and/or what type of things one can leave in a will. Firstly, it is important to know the process. A decedents property passes immediately to the beneficiaries. If no will exists, then the property passes immediately to the heirs at law. The Courts intervene as a way of transfer of ownership. They will either prove-up the will in Court or identify the heirs if no will exists. This ensures the rights of the family are protected.
What are Heirs and Heirs at Law?
The verbiage is generally listed as a decedents heirs and/or heirs at law. This simply means that it would first pass to your heirs (whomever you have chosen). If no heir is specified in your will or if you do not have a will. then your property would be given to your spouse, then to your children, then your childrens spouse, then your grandchildren. If you have multiple children. Lets say 3 children, 1 child has passed. The assets would be split in 3 ways between the children. The one-third portion that was set to go to your deceased child would then be split between that child’s children. This is the general terminology in wills. If you want any of this changed to be more specific you can do so with a custom will. Mayfield Law Office can help with this.
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 requires that an executor of the will has four years from the date of the decedents 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 will 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.
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