Probate Under Texas Law: What is Probate in Texas?Lee McDonald
Probate Lawyer In Dallas
An experienced probate lawyer can provide you with invaluable guidance and direction on probate and estate administration. DallasProbateAttorneys.com, which is comprised of distinguished and highly experienced probate attorneys, stands ready to help you throughout the entire probate process, including the resolution of disputes, just as we have done for countless Texas families over the years. We will give you the peace of mind in knowing that a trained professional is looking out for your best interests. To learn more, get in touch with DallasProbateAttorneys.com by calling (972) 991-7700 or contacting us online.
What Is Probate?
Grieving a loved one’s loss is tough enough, but it gets especially painful when you are involved with funeral arrangements, cleaning out the deceased person’s home, determining what to do with all their real and personal property, and handling other thorny legal details affecting multiple family members or beneficiaries. Sometimes these issues are simple to address, but often times, they can require a more lengthy and draining process, one of the most important of which involves probate.
- Probate is a court proceeding where, after your death, your Last Will and Testament (commonly referred to as a “will”) is determined to be valid or invalid, and where your assets (which forms your “estate”) are used to pay your taxes and creditors and to make distributions to your heirs (if you have no will) or beneficiaries (if you have a will).
- Probate involves a court appointing a personal representative who takes the lead role in addressing the estate’s assets and debts, including distributing property to heirs or beneficiaries. If there is a will, the personal representative is called an “executor.” If there is not a will, a personal representative is called an “administrator.”
Texas probate courts provide various levels of oversight for the entirety of probate estate administration. The original will is filed with an application to admit the will to probate. The person who seeks appointment as an Executor (or, if without a will, as an Administrator) has four years from the date of the deceased’s death to apply to the probate court.
The Court Notifies The Public Of The Decedent’s Death, Will
After receiving the will and application for appointment, the court provides notice to the public for at least ten days. This timeframe allows anyone to object to the will being admitted to probate. If the ten days go by without objection, the court will schedule a hearing, at which time the court can find the will valid and admit it for probate. Although the ten-day notice is all that is required before the hearing, interested parties, such as beneficiaries and creditors, can object for up to two years after the will has been admitted for probate.
Judge Confirms Validity Of Will, Appoints Personal Representative
At the hearing, the judge confirms that the person applying for appointment is eligible to serve and confirms that the decedent’s will is valid. The applicant takes an oath affirming that they can fulfill their responsibilities and duties. Quickly after the hearing, the court will issue “Letters Testamentary.” The Letters outline the personal representative’s duties and lets third parties know that the personal representative has been granted authority to act on behalf of the estate.
Court Decides Independent Or Dependent Administration
In addition to appointing a personal representative, the court proceeding determines whether the administration will be independent or dependent. In an independent administration, the person appointed takes an inventory of the decedent’s assets and creates a list of all people who owe money to the estate. After the inventory is submitted to the court, the personal representative completes the administration process without court authorization. Most administrations are run independently. This can be ideal because it often means that the entire probate and estate administration processes cost less and nobody objects to the will’s validity.
Dependent administration occurs when the court’s presence is needed throughout the administration process. These administrations typically mean that someone, often a beneficiary, objected to the will’s validity or disagrees with the assets involved in the estate. Because the court’s guidance is necessary, the cost of the entire process can be considerably more expensive and take much longer than an independently run administration.
Court Determines Whether Probate Will Be Contested Or Uncontested
The hearing is also when a court determines whether the probate will be contested or uncontested. If anyone has filed an objection to the will during that ten-day period, the matter will be deemed contested. Otherwise, the probate process continues with little or no court involvement. However, the case can be contested for up to two years after the will was admitted to probate.
Is Probate Required?
From start to finish, probating the will to close the estate typically takes a few months if uncontested. Still, cases can last much longer, even years if they are highly contested. Because of this, it is no wonder that avoiding probate is a desirable option if possible. Probate is not required, but it is quite likely that your or a loved one’s estate will go through the process. There are probate alternatives available for both before and after the deceased dies. They can either eliminate or reduce the amount of assets that go through probate. Still, each has specific criteria that may or may not apply to you.
Small Estate Affidavit
A small estate affidavit is a written, sworn statement made by the heir of the deceased that the estate qualifies as a small estate. For this probate alternative, the following criteria must be met:
- The deceased does not have a will;
- No petition for appointment of a personal representative action is pending in court or has been previously granted;
- Thirty days have passed since the deceased’s death, and;
- The value of the decedent’s estate assets is less than or equal to $75,000 (the deceased’s homestead is excluded from this total amount).
A living trust can be used to manage and distribute your property while you are alive and well, at your incapacity, and at your death. When you create a trust, you – the trustmaker (also known as grantor) – are giving legal possession of your assets to the “trustee,” who is legally responsible for managing and distributing the assets according to the terms of the trust. Many people are both the trustmakers and trustees of their own revocable living trusts. Generally, assets in both revocable living trusts and irrevocable trusts are not subject to probate. People often create and fund living trusts to avoid probate.
Joint Ownership And Property Agreements
Jointly owned assets often include homes and land. To avoid probate, assets must be jointly owned “with the right of survivorship.” The document or agreement must establish joint tenancy by showing that you and someone else jointly own the property, and must clearly show a right of survivorship for that property. When one person dies, the other person on the document automatically takes that asset and owns it outright.
A payable on death designation, or POD, is a designation made on personal bank accounts that grants named beneficiaries access to account funds upon your death. You still have control over the money in the account while you are alive, but the designee will take outright the remaining funds upon your death.
You can avoid probate of real estate of vehicles using a transfer-on-death deed. These deeds show that you intend to transfer the property to a named beneficiary after you die. The deed can be signed and recorded while you are still alive and take effect at your death. You may revoke this type of deed at any time.
You can avoid probate of vehicles by applying for a certificate of car ownership. The certificate names the beneficiary and becomes effective only after your passing. After that, to revoke the deed, you either have to sell the vehicle or apply for a new certificate of ownership that names a new beneficiary or no beneficiary at all.
Life Insurance And Retirement Accounts
Life insurance policies and retirement accounts are among the most common non-probate assets. These assets often bypass probate because they are based on contractual agreements between you and the life insurance company, employer, or other third-party organization. When you opt into these programs, you will typically list a beneficiary and successor beneficiary who will receive the money when you die.
A more common problem occurs when the deceased does not update their beneficiaries’ names despite an intent for the insurance and retirement money to go to others. For example, you originally named a sibling as your beneficiary on a life insurance policy. If you later decide that the money should go to your spouse, but you did not update the name, your spouse is unlikely to receive that money.
Under particular circumstances, it is still possible for life insurance policies and retirement accounts to end up in probate court. For example, suppose the deceased person died without named beneficiaries or had listed beneficiaries who predeceased them. In that case, the estate is likely to receive the death benefits. At that point, the death benefits become subject to a will or intestate succession laws. However, it is essential to read the policies associated with these kinds of assets, as they often state what happens if a beneficiary cannot receive the benefits.
Federal and state taxes have different impacts on estates, life insurance policies, and retirement accounts. Planning for these issues now can save your beneficiaries time, money, and stress in the future. If you are a beneficiary or believe you have a claim to one of these assets, please contact our Dallas probate attorneys to schedule a consultation.
Contested Probate Issues
Although most probate cases proceed uncontested, small and complex disputes can arise at the start of the process or arise after several months have gone by. Will contests are legal claims used to prove that a will was invalid when created. These claims are often based on allegations of:
- Undue influence;
- Improper will formation; and
- Ambiguous use of language.
Under normal and appropriate circumstances, your will would be a reflection of what you truly want for your money, important family heirlooms, home, and other assets. You would create and sign your will freely and voluntarily. Ideally, you would have support from family and friends. Unfortunately, sometimes wills are not created freely or voluntarily, and they are not accurate reflections of what their authors, known as testators, truly want.
If you do not believe a will is representative of a testator’s wishes, you might be able to bring an undue influence claim. A claim of undue influence rests on the idea that a beneficiary overcame the free will of a testator using threats or other improper actions. If you make a claim, you’ll have to show that undue influence occurred. However, these claims are often difficult to prove because acts of undue influence typically occur away from others who could see it. Moreso, actions of undue influence could appear questionable, but not enough to prove that it existed. Contesting the will under this claim requires proof that the deceased did something more than give a “mere request” for the beneficiary to participate in the will formation.
Improper Will Formation
Like all legal documents, wills are subject to certain rules when they are created. Given their impact on beneficiaries’ lives, Texas law requires that a will comply with the following requirements:
- The will must be in the testator’s writing;
- The will must be signed by the testator OR by a person on behalf of the testator;
- The will must be attested by two or more witnesses.
To be attested by witnesses, the testator must sign the will in the presence of the witnesses. In addition, the witnesses must sign the will indicating that they saw the testator sign the will.
If any of the requirements are successfully disputed, the court may not admit the will to probate. Disputes could be about whether a person signing on behalf of the testator had the authority to sign it or whether the testator actually wrote the will.
A well-drafted will has clear and direct language that outlines a testator’s intentions. Unfortunately, sometimes wills contain vague language. One of two ambiguity types must be present to claim that language is ambiguous.
- Patent ambiguity: The words written on the page are vague. An example of this could be, “I devise two of my antique cars to my son and four antique cars to my daughter.” A dispute could arise over which antique cars go to which child.
- Latent ambiguity: The words written on the page are not vague, but carrying out the words creates a vague meaning. An example could include, “I devise $1,000 to my friend, Laurie S.” We can see how much money should go to Laurie S. However, the testator has two friends named Laurie Sanderson and Laurie Smith. Both friends could dispute who the testator meant to devise the money to.
In both cases, probate courts will generally allow additional evidence to clear up the ambiguous language. Contested issues can prolong the time it takes to complete the probate proceedings.
Dallas Probate Attorney.com’s highly regarded and experienced probate attorneys are committed to resolving your contested probate issues on the most favorable grounds possible. Contact us if you are or may be dealing with a contested probate matter.
Ancillary Probate Actions
Both small and large estates could be subject to ancillary probate if the estate includes property in a different state. For example, for a Texas resident who files a typical probate action in Texas but owns a cabin in Minnesota, a probate action will also need to be opened in Minnesota. Similarly, for residents of other states who own land and some forms of personal property within the state of Texas, an ancillary probate action needs to be filed in this state.
The process can be shorter than a typical probate action. For example, suppose a will has been probated in the state where the deceased was living at the time of death. In that case, the will can likely bypass many or most of the requirements of a Texas probate proceeding.
If an estate is large and includes property owned in multiple states, each state would require a separate ancillary probate proceeding, and each state has its own set of laws guiding those proceedings. Therefore, attorneys licensed in those states would be needed to guide you through those processes. However, when you start a probate proceeding with our Dallas probate lawyers, we take the lead and connect you with the resources needed to have a successful action elsewhere. Similarly, if you are an out-of-state resident filing an action here, we will work closely with your attorney in your home state.
Hiring A Texas Probate Attorney
We understand that probate, even under the best of circumstances, can be tiring, but we do the heavy lifting so that you do not have to. So, when you are ready to begin, please call our office at (972)-991-7700 or online for a free consultation.
Can I Avoid Probate In Texas?
The probate process in Texas is incredibly complex. Whether you must go through the probate process is determined by several factors, some involving the total value of your assets and how those assets are managed. Most people in Texas will have to undergo probate, but there are some circumstances where you can avoid it. Read on to learn more about what probate is, who is subject to the probate process, and how the probate process can be avoided in Texas.
Experienced Texas Probate Attorneys
In general, most Texans will have to go through the probate process to distribute the estate they leave behind when they die. Texas probate law requires attorney representation for those handling an estate subject to the probate process. Courts mandate an attorney address probate filings and others because probate is complex and difficult to handle, even in the best circumstances. The probate process is filled with challenging requirements, rules, and procedures that can affect how the property is dealt with if not followed properly. If you need to start the probate process, it is essential that you have an attorney who understands the ins and outs of probate law to help you achieve the best result. DallasProbateAttorneys.com lawyers understand the probate process and are ready to represent you. To learn more or schedule your probate case consultation, call us at (972) 991-7700 or visit our website today.
What Is Probate?
Probate is the process where the court legally recognizes a person’s death and oversees the settling of a deceased person’s estate. An estate consists of the deceased’s debts and assets. “Settling” the estate involves paying the deceased’s debts and distributing assets depending on the contents of the estate. The decedent could die testate, meaning that they executed a will, or die intestate, meaning that they died without a valid will.
Whether the deceased has a will can affect the probate process substantially. If the deceased has a will, the will generally determines how assets and debts are handled. However, if the deceased died without having executed a will, the court will have to manage the estate according to intestacy laws. Either way, the probate process may be necessary to ensure that all of the deceased person’s debts are paid and that assets are distributed fairly and lawfully.
The deceased’s executor or personal representative is a person named in a will to handle the deceased’s estate after they die. If there is no will naming a personal representative, the court will choose one so the probate process can begin. Depending on the size of the estate, whether the deceased had a will or other circumstances associated with the estate, probate can still take several months to complete.
Do I Need To Have My Estate Probated?
In most cases, Texans will have to go through the probate process when dealing with their estate. However, several exceptions exist that could allow you to partially or completely avoid probate, even if you or a loved one die without a will or other estate planning tool. Contact a probate lawyer at DallasProbateAttorneys.com to see if we can address your probate or estate planning needs.
Alternatives To Probate
Texas law allows the heirs of a decedent who died without a will to file a small estate affidavit. A small estate affidavit is a written, sworn statement made by the heir of the deceased that the estate qualifies as a small estate. For this probate alternative, the following criteria must be met:
- No petition for appointment of a personal representative action is pending in court or has been previously granted;
- Thirty days have passed since the deceased’s death, and;
- The value of the assets of the decedent’s estate is less than or equal to $75,000 (deceased’s homestead is excluded from this total amount);
- An affidavit is filed with the clerk of the court that may properly handle the case;
- A judge approves the affidavit;
- The prospective heirs are provided notice under Texas law; a certified copy must be sent to every person who owes money to the estate, who has estate property in their possession, or anyone who acts as an agent on behalf of the estate;
- Certified copies of the affidavit and order of approval are filed with appropriate county property recording authorities.
A living trust is a way to distribute your property and handle your debts while alive and at death. A trust provides several benefits, one of the most significant being avoiding probate. When you create a trust, you place your assets in the hands of a trustee. Those assets generally will not be subject to probate after your death. To create a trust, you have to create a trust document that identifies a trustee and a successor trustee, lists the assets in the trust, and establishes that you are transferring the ownership of those assets over to the trustee.
Probate may also be avoided for real property (homes and land) jointly owned with the right of survivorship. This means that if you own property with someone and they die, the property goes to the remaining living owner. A valid joint tenancy agreement shows that you and another jointly own the property with a right of survivorship. Texas is a community property state, so married couples can also create survivorship community property agreements that establish joint ownership and a right of survivorship. In both situations, probate is not required because the agreement already specifies who gets the property after the other’s death.
Payable-On-Death (POD) Designations
A payable on death designation, or POD, is a designation made on personal bank accounts that grants a named beneficiary access to account funds upon your death. You still have control over the money in that account while alive and can even spend all the money in the account if you choose. The benefit of having a POD designation is identifying someone who will have ownership of that account and whatever amount remains in it at your death. Probate will not be necessary because the designation identifies a specific person who will take those remaining assets. Typically, institutions with POD accounts require a death certificate to initiate the transfer of ownership.
Affidavits Of Heirship
An affidavit of heirship establishes the heirs of the property when the deceased died without a will. While the affidavit does not transfer real property to the person recording the affidavit, if on file for five years, it serves as evidence, creating a “chain of title” transfer from the decedent to their heir(s).
Texas allows transfers of real estate that avoid probate through transfer on death deeds. These deeds show that you intend to transfer the property on the deed to the named beneficiary after passing. The deed can be signed and recorded while you are still alive, but it will not take effect, and the beneficiary will have no rights to the property, until after your death. You may revoke a transfer on death deed at any time.
You can avoid probate of vehicles by applying for a certificate of car ownership in the beneficiary form. The certificate names the beneficiary on the beneficiary form, which becomes effective only after your passing.
If you change your mind about giving the vehicle to a beneficiary, you can revoke the grant. However, for the revocation to be effective, you either have to sell the vehicle or apply for a new certificate of ownership that names a new beneficiary or no beneficiary at all. If you do not perform one of those steps, the vehicle will typically pass to the beneficiary you initially chose.
Hiring A Qualified Probate Attorney In Texas
Handling the probate process can be incredibly difficult. There are many rules and exceptions in the process, and simple missteps could heavily impact your beneficiaries. It is crucial to have someone who understands the probate process and is on your side to help you achieve the best result. DallasProbateAttorneys.com attorneys have the skills and experience to help you with your probate matters. To learn more or schedule your probate case consultation, call us at (972) 991-7700 or contact us online for a free consultation.
Personal Representatives And Their Roles In Estate Administration
A personal representative, sometimes called an “administrator” or “executor,” is appointed to address all assets and debts that a deceased person left at death. If you have been recently appointed or are thinking about your estate plan, understanding a personal representative’s role in estate administration can make the process smoother and less stressful.
After the deceased has died, the person interested in becoming personal representative should apply for the position. In Texas, personal representatives are also required to find legal representation. If there is a will, the personal representative often knows to apply for the role because they were nominated for the role in the will. If the deceased did not have a will, Texas law prioritizes the role of particular individuals. The application should be filed with the court within four years of the deceased’s death. At a hearing, a judge will appoint a personal representative and ensure that the person understands their role and duties.
Once appointed, a personal representative must distribute assets to all distributees, also known as “beneficiaries,” after paying the deceased person’s debts. These responsibilities can require minimal to considerable effort, depending on the size and complexity of the estate. However, regardless of how much work executors must do, all personal representatives are fiduciaries to those who will receive something from the estate.
Fiduciary Duties Of Loyalty And Care
A fiduciary duty is a legal duty imposed on a personal representative and for the benefit of beneficiaries, meaning the personal representatives only owe these duties to beneficiaries. Because personal representatives are granted an enormous amount of power and trust, the law wants to hold them accountable for their actions. Upon appointment, personal representatives owe a duty of loyalty to beneficiaries. This means that personal representatives must serve the best interests of beneficiaries and avoid self-serving behavior.
For example, suppose your sister is a personal representative probating your mom’s will, and you are both beneficiaries. In that case, your sister cannot take something of yours granted to you in a will. If your sister believes it is extremely unfair that you get to keep an old and valuable family heirloom, she is legally obligated to carry out your mom’s wishes.
The duty of loyalty becomes more challenging to understand as an estate becomes more complex. The duty of loyalty can include:
- Maintaining accurate records;
- Protecting and preserving the estate;
- Fully disclosing important information about the estate to beneficiaries;
- Avoiding making a profit for their role other than reasonable compensation;
- Administering the estate according to applicable law or the deceased’s requests; and
- Avoiding situations where the executor’s interests conflict with beneficiaries’ interests.
Personal representatives also have a fiduciary duty of care. Under Texas law, executors must care for estate property as a sensible person would care for their property. For example, if an estate includes buildings, the personal representative, generally speaking, must keep the buildings in good condition. If you are an executor, your duty of care has more to do with how you carry out the estate. A few examples include:
- Keeping the deceased person’s home in good condition while it is for sale;
- Using your best efforts to look for hard-to-find beneficiaries;
- Taking the lead on rehoming the family pet;
- Notifying beneficiaries of their portions of the estate and ensuring they receive it;
- Looking for buyers for the deceased’s business and distributing the proceeds appropriately and timely.
Fiduciary duties do not require personal representatives to have extraordinary skills in any particular area. However, if you have numerous assets or assets that require longer-term financial planning, like stocks and businesses, nominating a personal representative with those skills can be of great benefit to your beneficiaries later. On the other hand, if a beneficiary files a claim for violation of fiduciary duty, the court is likely to consider your personal representative’s special skills in its decision.
Texas Probate And Estate Planning Attorneys
Knowledge of fiduciary duties is beneficial whether you are planning your estate, have been appointed personal representative, or are a beneficiary who is concerned about an estate administration.
The skilled lawyers at DallasProbateAttorneys.com can help you identify trustworthy individuals to properly carry out your wishes. The person you choose should be able to treat your beneficiaries fairly, be responsible with money, and use time efficiently. When you identify a personal representative, naming that person in your will can provide peace of mind that your estate will be carried out effectively. For more information on how DallasProbateAttorneys.com can help you, please contact us at (972)-991-7700 or online for a free consultation.
How Do I Start A Probate In Texas?
The probate process is often confusing, and there are numerous steps and deadlines to meet. If you are seeking appointment as a personal representative, you are required by law to have an attorney represent you. The steps below provide a basic outline of what to expect when starting the probate process.
Steps To The Probate Process
Step 1: Filing
A probate application must be filed with the probate court in the county where the deceased lived.
Step 2: Probate Action Posting
After the application is filed, there will be a brief waiting period in which the county clerk posts a notice that a probate action has been filed. This post serves as notice to anyone who might contest the will or administration of the estate. If no contests arise, probate proceeds.
Step 3: Will Validation
Next, a judge will hold a hearing to legally recognize the deceased’s death. A judge will verify if there was a valid will. A personal representative will be appointed to carry out the estate’s outstanding obligations.
Step 4: Asset Inventory
Within 90 days of being identified, the personal representative must prepare an Inventory, Appraisement, and List of Claims and sign to their accuracy. The Inventory must include accurate descriptions of estate assets, including approximate asset valuations.
Step 5: Identifying Beneficiaries
The executor must notify estate beneficiaries if the deceased had a will. If not, the probate court will determine heirs. Interested parties may apply for an heirship determination in the county where the real property is located.
Step 6: Notifying Creditors
If the deceased leaves behind debt, those debts will be resolved using estate assets. Debts often include mortgages, medical bills, and loans. The personal representative must notify creditors, allowing them the opportunity to file claims against the estate. Proper notice to creditors can be achieved by publishing the notice in the local newspaper.
Step 7: Dispute Resolution
An estate cannot be finalized when there is probate litigation in process. There could be pending contests to the will, or if there is no will, to the court’s administration of the estate. All contests and grievances must be heard by the probate court before proceedings can continue. In most cases, contests will not go to court because they are resolved in mediation or between the estate and contesting parties themselves. All complaints must be made within two years of the original probate action. Some will and administration contests include claims of forgery, undue influence from a third party affecting asset distribution, improper will execution, or the existence of more than one valid will. The individual bringing the contest is responsible for proving any claims they bring against the estate.
Step 8: Asset Distribution
After the debts are cleared and disputes resolved, the remaining estate assets are distributed to the beneficiaries.
Hiring A Texas Probate Attorney
If you are currently involved in the probate process, it is crucial that you retain an experienced probate attorney for guidance and direction. Our team at DallasProbateAttorneys.com is ready to assist you with these matters today. Call us at (972) 991-7700 or online for a free consultation.
Ancillary Probate Actions
Under Texas law, an ancillary probate action is where a Texas court may rely on a foreign will (a will created under the laws of a state other than Texas) to transfer property in Texas without going through the entire probate process. In some instances where the deceased owned property in Texas, the beneficiaries may only have to file the foreign probated will and the order from the state admitting the will into probate to transfer the property. This only works when the foreign will has been admitted to probate. If this process has not been undertaken in the foreign state, an entire Texas probate proceeding may be necessary.
Information Needed For An Ancillary Probate Action
To begin the ancillary probate action, the interested party, usually with the help of a probate attorney, will file an application with the probate court for the ancillary probate of the foreign will. This application should include all of the information generally required for a standard probate action in Texas, including the name and address of each person who would be entitled to a portion of the estate if there was no will.
The foreign will must also be admitted with the judgment from the foreign state. This document must include:
- The original signature of the court clerk or individual who is in charge of the probate records
- The court seal
- A certificate with an original signature of a judge or magistrate stating the judgment is proper
A probate attorney can help you be sure you have the proper documents before filing the application with the court.
Controlling Texas Property With Ancillary Probate
There are some circumstances where just transferring the property is not enough. In some cases, the executor (the individual in charge of the estate) may need to manage assets for a time, and an ancillary probate action alone will not allow for managing these assets. These situations usually occur with businesses. In these cases, the executor may follow the majority of the ancillary probate process and simply request ancillary Letters Testamentary. These letters allow the executor to act on behalf of the estate and manage its property until it is divided among the heirs.
The individual asking to be the person to whom the Letters Testamentary are issued must be qualified in the foreign state where the probate happened and must not be disqualified under Texas law.
A Probate Attorney Can Help
You should consult with an attorney to determine if an ancillary probate procedure is needed for your situation. The team of attorneys at DallasProbateAttorneys.com has years of experience with probate actions of all sizes. Reach out to DallasProbateAttorneys.com to schedule a consultation by calling (972) 991-7700 or contacting us online