Questions You Should Ask an Estate Planning Attorney

The probate process begins with a knowledgeable attorney, skilled at balancing all the moving components of probate: beneficiaries, executors, estate administrators, and wills. There are many aspects to having a will probated, and it is likely not something you want to endure alone.

Getting a Will Probated in Texas

In the time following the passing of a loved one, there is a multitude of emotions we often go through, the paramount among them being sorrow and grief.  Unfortunately, during this time, countless people will also encounter frustrations and confusion when it comes to resolving issues of the loved one’s estate.

As Texas probate attorneys, we are no strangers to this scenario. We have made it our goal to accommodate clients in learning how to get a will probated in Texas and relieve our clients from the frustration and confusion so that they can focus on mourning the loss of their loved one. Consequently, what ensues is a detailed accounting of the legal process, definitions of the various expressions you may encounter, explanations of the different types of estate administrations, and more.

What is Probate?

Probate is defined as the process by which a court legally acknowledges a person’s passing and permits the administration of his or her estate. This process usually must be completed whether the individual has passed with a Last Will and Testament in place or if no will existed.

As you advance through the process of probating wills in Texas, there will be various legal expressions that may be cryptic or ambiguous to you. Some examples of these terms may be:

  • Decedent: When probating a will in Texas, it is to be expected that the term “decedent” will arise. This legal expression is used to describe the individual who has passed and whose estate is in the probate process.
  • Will: The legal document with which the decedent has indicated and defined how he or she would like for the assets to be issued among their beneficiaries.
  • Estate: The State of Texas defines an estate as comprised of all the decedent’s assets. These include, but are not limited to, personal belongings, cash, vehicles, retirement accounts, stocks and bonds, life insurance policies, and real estate holdings such as homes, land, etc.
  • Beneficiaries: The loved ones named in a will, or ascertained by the court if there is no valid will, who will receive assets from the decedent’s estate.
  • Executor: Upon passing, an individual with a legitimate and binding will in place should have named a person to take on the responsibility of being the executor of the estate. As executor, the vital duties will be to inventory and catalog the decedent’s assets; pay taxes of the estate; pay debts of the estate; file lawsuits for claims on behalf of the estate; and dispense assets from the estate to loved ones as named in the decedent’s will.
  • Administrator: If a decedent has passed without completing a legitimate will and no executor has been named, Texas law instructs that an administrator be appointed to carry out the duties of an executor.

What Are the Alternatives to Probate a Will in Texas?

Before you examine the procedure of how to probate a will in Texas, you must understand the distinction between the various kinds of probate. There are a number of them, such as:

  • Independent Administration: A standard route when a decedent had a legal and binding will, which designated an executor for the estate. With an Independent Administration, the executor acquires flexibility to execute his or her obligations without strict oversight by a probate court. With this sort of probate, another chief distinction is that the executor is not obligated to post an insurance policy or bond for the estate.
  • Dependent Administration: In the event than an individual has passed without a will, Texas probate law usually requires that the estate falls under stricter supervision by the court known as Dependent Administration. The administrator is expected to seek court approval for every step in the process of distributing an estate, posting a surety bond, as well as filing a detailed report to a Texas probate court every year concerning the estate.
  • Muniment of Title: A process by which you can probate a will in Texas is a comparatively inexpensive and simple procedure known as Muniment of Title. Muniment of Title may only be utilized if the estate has no debts except secured real estate, Medicaid has no request against the estate to redeem benefits the decedents may have received, and if a legitimate will exists.

With the Muniment of Title, the court must decide that there is no need for a probate administration and accept the will into probate as a muniment (or evidence) of title to the assets of the estate. No executor is appointed. However, the individual who requested the Muniment of Title must file a sworn statement with the court with six months verifying that the terms of the will have been fulfilled.

  • Small Estate Affidavit: When a decedent has no valid will, and the worth of the estate is $50,000 or less, the beneficiaries can file a Small Estate affidavit to collect the property without undergoing the probate procedure.

A Guide on How to Probate a Will in Texas

With the information mentioned above, it will be straightforward to understand the simple process of how to probate a will in Texas. The steps are as follows:

Step 1. Filing with The Court: The initial step is simple to begin. Whether a will is present, an application for probate must be filed with the appropriate Texas probate court in the county of which the decedent lived.

Step 2. Posting Notice of Probate Administration: Following the probate applications successful filing, there will be two weeks or so of waiting before a hearing is held for the form. During this time, the County Clerk will display a notice at the courthouse expressing that a probate application was filed to serve as a notice to any party who may be interested in contesting the will or administration of the estate. If no contests are encountered, the probate court advances in opening the administration.

Step 3. Validation of the Will: Following the waiting period, a hearing will be presided over by a Texas probate judge. He or she will legally recognize the decedent’s death and the oversight of the court over the case, verify that the deceased had a legitimate will or that there was no will at the time of passing, and appoint an administrator or confirm the individual named as executor.

Step 4. Inventory of the Assets: Once an executor or administrator is officially designated to the estate, that individual must catalog and record all of the assets held by the estate.

Step 5. Identifying the beneficiaries: If the decedent had a legitimate will, the executor would inform beneficiaries of the estate. In the circumstance that no will was filed, the probate court is held accountable for determining heirship in Texas.

Step 6. Notify the Creditors: Most decedents leave behind debts that must be settled out of their estate. Medical bills, household expenses, mortgages, etc. will need to be paid from the estate. However, before they are paid, creditors must be informed of the decedent’s passing by the estate’s executor and allowed the opportunity to file claims against the estate. This may be done with a notice published in the local newspaper.

Step 7. Resolve Disputes: If family members or other possible beneficiaries are challenging a will in Texas or file other complaints, these will be heard by a probate court judge and resolved before the estate can be concluded.

Step 8. Distributing the Assets: Once the debts and expenses of the estate are settled, and any challenges of the will are resolved, the residual assets of the estate are then distributed to the beneficiaries.

When You Do Not Need to Probate a Will in Texas

Although nearly everyone will experience the process described above in the probate of a loved one’s estate, some can avoid the process in certain situations. Below are some scenarios which are considered as Non-Probate Assets in Texas and can be transferred to the beneficiary without probate:

  • Bank accounts which are payable on death
  • Payments from life insurance policies
  • Community property also held with right of survivorship
  • Survivor benefits that come from an annuity
  • Property that is possessed as joint tenancy with right of survivorship

Schedule a Consultation Today to Discuss Estate Planning

There are multiple aspects of probating a will in Texas. The procedure is naturally an experience no one would want to undergo alone. Fortunately, you don’t have to. Our team of attorneys has over 35 years of experience helping families plan for their futures, protecting surviving spouses, and safeguarding assets for children and grandchildren. We welcome you to call the Voeller Law Firm today at (210) 651-3851 to request a consultation and learn more about estate planning. We are proud to serve the greater San Antonio, Bexar County, Comal County, Guadalupe County, and South Texas areas.

Our services go far beyond merely preparing – we do our best to help you protect your future.

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Voeller Law Firm

A law practice limited to estate planning, elder law planning, probate and business planning. Through seminars and free initial consultations, the lawyers at the Voeller Law Firm can help area residents and businesses evaluate their legal needs and determine what their options are.