Probate

What is Probate?

Probate is a legal procedure wherein the estate of a deceased person is administered. Probate involves collecting the decedent’s assets, paying off any debt owed to creditors, and distributing property to the legal heirs or beneficiaries. Typically, probate property is distributed by an executor, according to the decedent’s Will. If there is no valid Will, these activities are managed by an administrator.

What Happens During Probate Administration?

Probate is a process that usually begins with filing the decedent’s Will with the Court, filing for an Heirship Determination, or filing documents asking the Court to appoint an Independent Administrator. You will find the full steps of the process outlined in greater detail below.

Important Things to Know About Probate Administration

Creditors must be notified and legal notices published in certain probate cases.

Executors of the Will or Administrators of the Estate must be guided in how and when to distribute assets and how to handle the debts of the estate.

Texas is a community property state. Community property is treated differently than separate property in Texas.

There are time factors involved in filing and objecting to claims against the estate. There may be separate procedures required in contentious probate cases.

Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.

Assets that have designated beneficiaries, such as life insurance or POD accounts simply need to be transferred from the deceased to the designated beneficiaries. A death certificate is required to make these transfers. These transfers occur outside of the probate process.

If a decedent died without a Will, an Attorney ad Litem will need to be appointed by the Judge to find any lost or unknown heirs.

Probate Includes

Authenticating the Will

At this first stage, the court will decide if the presented Last Will & Testament is, in fact, valid. This may require witnesses to testify in court or sign a sworn statement.

Appointing an Executor/Representative

The decedent’s choice of executor is usually included in the Will, but the court usually appoints next of kin if there is no Will, or if no executor is named in the Will.

Distributing the Estate

The final step of the Probate process is to properly distribute the estate, according to the decedent’s Last Will & Testament.

Steps of Probate

Authenticating the Last Will & Testament of the deceased
Appointing the executor or administrator
Posting bond
Locating the decedent’s assets
Determining date of death values
Identifying and notifying creditors
Settling the decedent’s debts
Preparing and filing tax returns
Distributing the estate

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Probate Process

The first step of Probate is authenticating the Last Will & Testament of the deceased. The court will look over the Will to determine if it is, in fact, valid. This may require witnesses to testify in court or sign sworn statements, if necessary.

The second step is appointing an executor, also sometimes known as a personal representative or administrator. This person will manage the probate process, make sure everything goes according to plan, and settle the estate. If the decedent did not specify an executor in their Will, or did not leave a Will, the court usually will appoint next of kin as executor. However, this appointment can be rejected, in which case, the court will appoint someone else.

Then, the executor will receive "Letters Testamentary" from the court or Letters of Administration if there is no Will. This is simply documentation that allows the executor/administrator to act and enter into transactions on behalf of the decedent's estate and administer the estate.

The next step is posting bond. In some cases, the executor/administrator may need to post bond prior to accepting the Letters. Some Wills include sections indicating that this is not necessary, though. The bond acts as an insurance policy that reimburses the estate in case the executor commits some grievous error - whether on purpose or by mistake - that damages the estate and/or its beneficiaries.

Next, the executor/administrator will then locate and take possession of all the decedent's assets. This includes assets that were hidden, so it may require some digging through tax returns, insurance policies, and other documents. With real estate, the executor/administrator must ensure property taxes are paid, insurance is kept current, and mortgage is paid on time.

The next step is notifying all creditors of the decedent's death. Texas requires a notice to be published in the local newspaper to alert any and all creditors to their passing. At that point, creditors have a limited amount of time to make claims against any money they are owed from the estate. The executor/administrator can, however, reject these claims if they think they are invalid.

Account statement and appraisals help the executor/administrator determine date of death values for the decedent's assets. The court may appoint appraisers. Texas requires the executor/administrator to submit a written "Inventory" to the court that includes everything the decedent owned along with each item's value on the date of death.

Then the executor/administrator pays off any remaining debts. The executor/administrator should pay these alongside final bills possibly incurred by the decedent's final illness, from estate funds.

This is when the executor/administrator prepares and files the decedent's tax returns for the year they died. They will also find out if the estate is liable for any estate taxes and file tax returns for those as well, if needed. All taxes due are paid from estate funds, and are generally due within nine months of the decedent's death date.

Finally, once the executor completes all the steps above, the estate can be distributed. In a dependent administration, the executor must first petition the court for permission to distribute what is left of the decedent's assets. Usually, the court will not grant permission until they receive a list of all financial transactions the executor made during the probate process; however, some states allow this requirement to be waived.

Probate Intake Document Download

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