WHAT IS PROBATE?

So what is “probate” anyway, you might be asking? This is simply the term used to refer to the process of settling a person’s estate after they have passed away.   What does probate require?

1. Admitting the will to probate-(this just means that the probate court determines the will is valid).
2. Collecting assets of the person who died
3. Paying any debts they may have owed
4. Distributing the remaining estate to beneficiaries of a Will.

In Texas, there are many, many variations of probate. Some are pretty simple, while others are very complex. At a minimum, it typically takes 3-6 months to complete a simple probate. This type of probate is what’s called an “Independent Administration of the Estate.”

This means that there is very minimal court supervision. The Executor (the person named to serve on behalf of the estate during the probate process by way of the will) is able handle the probate, usually quickly and efficiently. While it is a simpler process, it is still somewhat time consuming, requiring a fair amount of paperwork, reviewing all the various assets involved, how title was held to these assets and determining the executor’s ability to distribute that asset.

 
WHERE DOES PROBATE TAKE PLACE?

Probate takes place in the county in which the Decedent (person who died) died, or the county in which he or she resided at the time of their death. Note, that even if the Decedent lived outside of Texas, but owned real property in Texas, a probate may still be necessary in Texas for that property.

WHAT IF MY LOVED ONE DIED WITHOUT LEAVING A WILL?

The unfortunate reality is that many people wait until it’s too late to create a will or other estate plan (such as a living trust). When this happens, the laws of the State of Texas kick in to determine how the estate will be distributed. This is called “Intestate Succession” also refereed to as the laws of “Decent and Distribution.”   Basically, Texas makes a will for you at that point. Texas determines where your property will go and in what percentages. The Court must determine who the heirs are, what percentages are required by law, and then act accordingly.

There is a misconception that if someone dies without a will, the spouse automatically receives it, or the children of the Decedent automatically receive the property.  But, this is not true-Decent and Distribution discussed above controls.

Many times, clients seem to mistakenly think that their assets automatically pass to a surviving spouse or their children when they die. Unfortunately, this is not the truth. In those cases, Texas law determines the distribution.

WHAT TRIGGERS PROBATE?

Whether a person dies with a will or without a will, unless there was some other means of passing on property to a loved one set up before the person’s death, then probate is required.  So for instance, if a person dies but left their property in a living trust-that property will pass to a beneficiary and would not have to go through probate. Similarly if someone died leaving property titled jointly with another individual-that property may not have to go through probate (but see below on Joint Tenancy and how Texas law views this).  Property left by way of a beneficiary designation would also avoid probate. So things like life insurance policies, 401ks, IRAs etc most likely pass outside of probate.

But, pretty much everything else would need to go through probate in some form.  So unless all property passed by way of a valid living trust, by way of a valid Joint Tenancy with Right of Survivorship (which has strict requirements) or by way of a beneficiary designation-then a probate must be filed. The type and extent of the probate depends on a number of factors such as size of the estate, whether there was a valid will, whether parties agree or will not agree etc.

HOW LONG DO I HAVE TO FILE A PROBATE?

In general, a will must be probated within four years of the person’s death.

HOW LONG DOES PROBATE TAKE?

That depends on the type of probate involved and the complexity of the issues. With a simpler Independent Administration of the Estate, 3-6 months is average. For Petitions to Declare Heirship where someone died without a will, it can take long, as there are more issues involved.

WHAT IS SURVIVORSHIP PROPERTY AND HOW CAN IT BE USED TO AVOID PROBATE?

Property can be, and often is held jointly among two or more people. Let’s use the example of a bank account. Often, a husband and wife will open up a joint bank account, where either the husband or the wife may sign checks, withdrawal money etc.

There are two concepts that are very important. The first is what is called Joint Tenancy With Right of Survivorship. If done correctly, this can help avoid probate.  Joint Tenancy With Right of Survivorship means that property held jointly will automatically  pass to the surviving joint tenant who will now possess 100% ownership.

But in Texas, it’s not that simple. Texas has a presumption against a right of survivorship. Texas actually requires you to use specific language and have a separate agreement detailing that it is your wish that a specific piece of property (in our example a bank account) should automatically pass to the survivor.

If the right language was not used in setting up the account and if the couple failed to have a separate, written agreement stating that that account should be held as Joint Tenants With Right of Survivorship, then it will not be. The result? Unfortunately, the now deceased spouses’ estate owns a 50% undivided interested in that bank account , and his or her share must go through probate! (Presumption of Tenants in Common). See Section 452 of the Texas Probate Code.

Now let’s use a different example-a more expensive example-the family home. Often a husband and wife buy a piece of property together when they are married. I hear people all the time say “well they bought it when they were married-it’s community property and passes automatically to the surviving spouse right?” 

Unfortunately, that is not correct. Again, Texas presumes there is no right of survivorship unless there is evidence of that right. So this means that the deed must have contained specific language, and there must have been a separate written agreement. So just because a couple was married and owned a home, probate may be necessary to determine where the now deceased spouse’s share of that house will go.

1. Independent Administration of the Estate. This is where the person died with a valid will and that will was properly witnessed. The best way is use of a “self proved will.” This is where two witnesses have not only witnessed the testator (the person making the will) singing the will, but then they sign an affidavit attached to the will that they witnessed the signing. This is self proving and “proves up the will.” This eliminates the need to locate the witnesses and drag them into court to testify. That way, even if the witnesses can’t be located,the will can be proved without problem.  This also typically means that an executor was named to serve without bond. This is the best type of probate, and requires the least interference from the Probate court.
2. Muniment of Title- This procedure will only be allowed by the court when the applicant can show that (1) the estate has no unpaid debts, excluding debts secured by liens on real estate, and (2) there is no necessity for administration. The will must still be proved valid at a hearing before the court; however, no executor will be appointed. This is typically an easier, quicker way to settle an estate.
3. Dependent administration
4. Petition to Declare Heirship. When someone dies without a will, often a petition must be filed to declare heirship. This is true, even if the person was married. 
5. Small Estate Affidavit- The requirements for the collection of a small estate by affidavit are that: (1) there is no will being offered for probate and no petition for dependent administration pending; (2) the value of all of the estate assets, not including homestead and exempt property, does not exceed $50,000; (3) 30 days has elapsed since the decedent's death; and (4) two disinterested witnesses file a sworn affidavit concerning heirship.
6. Administration of community property
7. Community Survivor (without court authority)