If you are here to learn about Texas probate after the passing of a loved one, we first want to say that we are very sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
What is probate?
With that said, probate in Texas is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Probate in Tarrant County is also necessary to:
- Prove the validity of the will;
- Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one);
- Inventory and appraise the estate property;
- Pay any debts or taxes (including estate taxes); and
- Distribute the property as direct by the will—or by the state law if there is no will
In Texas, the probate process generally involves the following steps:
- Identifying and collecting the decedent's property or assets
- Paying off any debts owed by the decedent at the time of death
- Paying any necessary taxes owed by the estate
- Pursuing any claims or lawsuits against third parties for money owed to the estate
- Determining the identity of the Decedent's heirs if he or she died without leaving a will
- Distributing any remaining assets or property to the heirs or beneficiaries
These activities are carried out by the executor or administrator of the estate, sometimes under the supervision of the probate court and, in most cases, with the guidance of a probate lawyer.
The probate process has become very complex in recent years. As a result, your best bet is to hire a law firm that regularly assists clients in probate matters.
How does probate work in Texas?
Once a friend or family member has died in Texas, that person's estate must generally go through the probate process to properly administer the estate. Before starting the process though, you and your lawyer should discuss the various types of probate and any alternatives that may exist. If your case doesn't require a full administration, you may be able to avoid some part or all of the probate process and save time and money.
How is a Probate Started in Texas?
Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Executor starts the process by filing the original will with the court and filing an Application with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Application.
Are there alternatives to probate?
Texas offers several alternatives to probate. Some of these are very useful when an estate doesn't have enough money, property or assets to require a formal probate and some are used to determine who should get the money, property or assets of the assets when a decedent didn't leave a will:
- Small estate affidavits
- Muniments of title
- Affidavits of heirship
- Judicial determinations of heirship
Each alternative is distinct and in many cases is unique to Texas, and the alternatives for smaller estates can generally reduce the time and expense involved in the probate process. Come see us at Hixson & Stringham and we will discuss whether probate or one of the alternatives is available to best accomplish your goals.
What's so bad about probate in Texas... and what should I do next?
Many residents in Tarrant County have heard that probate is bad news. It tends to be very expensive, it's time-consuming, and it's also a public process.
The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
How is the Executor Chosen?
If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.
How does the Executor Get Paid?
Texas law provides that the Executor gets paid according to a compensation schedule, based on a percentage of the assets of the probate estate.
Could I Be Held Personally Liable For Making a Mistake as an Executor?
Being an Executor is a big responsibility. Texas's probate code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate. Also, there are certain deadlines that an Executor must meet in filing papers with the Court. If an Executor violates any of these rules, they can be held personally liable for losses to the estate.
Death and taxes
Many clients who need help with a probate matter don't know what to expect about the estate's taxes. The attorneys at Hixson & Stringham can help with issues related to your loved one's final tax return, filing income tax returns for the estate, and determining income tax consequences for the beneficiaries of the estate.
My loved one had a trust...will we need to go through probate?
In most cases, no. If your loved one's assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a Trust think they have it all taken care of. But time and again, family members of a recently passed loved one come into my office and they find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.
Why is that?
Often the Trust was prepared many years ago and was never updated; and often, their loved one's assets were not owned in the name of their Trust. That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.
It's why we do things so much differently than most other lawyers and law firms, here at Hixson & Stringham, PLLC.
What Assets are Subject to Probate?
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
How is Distribution of the Estate Handled if there is no Will?
If there is no will or trust, the estate will be distributed according to Texas probate and intestate laws, which state that a person's estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents).
How long does Probate take?
The length of time of a probate will depend on several factors. It usually takes a minimum of 3 months and can take up to two years or even longer for complex cases.
Other frequently asked questions about probates:
- How long do you have to probate a will?
- Does a will have to be probated in Texas?
- Does a surviving spouse need to probate a will in Texas?
- Are joint accounts subject to probate? How about life insurance?
- When is probate not necessary?
- What happens if you do not probate a will?
- Do you need a lawyer to probate a will?
- How is property divided if someone does not have a will?
- Is a handwritten will valid?
- Are other family members liable for the decedent's debts?
- Who has a homestead right in the decedent's home?
Getting Help: Choosing the Right Attorney For Your Probate Case
The best way to ensure your probate is done right is to choose your attorney wisely. Do not assume that all attorneys are the same! Too many lawyers only “dabble” in probate or trusts. Don't choose a lawyer who does probate as a sideline because these lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.
You don't have to use the attorney who prepared the Will either! Just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you. Choosing your probate or trust lawyer is one of the most important decisions you will make. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.
Contact Hixson & Stringham For A Post-Death Estate Review
If you're ready to get started with the probate process after the passing of a loved one, please contact our experienced Tarrant County probate attorneys at (817) 261-5000 to help determine your next best steps. We are here in service to making this all as easy as possible on you.
During this appointment, we will answer your questions about probate and guide you and your family through the next best steps. We are committed to helping you administer your loved one's estate as quickly and efficiently as possible and we look forward to relieving any administrative or legal burdens you may face during this time of loss.
We are just a phone call away at (817) 261-5000 or click the following link to set up a FREE 15 minute consultation. We're ready to answer whatever questions you have.