About Probate in Texas
Among lay people there are few areas of the law surrounded by more fear and misunderstanding than probate. Legal self-help resources tout the benefits of probate avoidance, and stories float around about someone's friend's family who got tied up in probate for years and paid the probate lawyers 40% (or more) of the value of the estate. To the extent there is any truth in these stories it probably relates to cases filed in other states where antiquated probate systems still exist. Thankfully, probate is one of the areas where Texas is actually a leader in streamlining and simplifying the process. In fact, the majority of the probates we handle cost less than $750 (including court costs), require only one brief court appearance by the executor, do not require the filing of an inventory, and take less than two months to finish.
Probating a Will
At its most basic level, probate is simply the procedure for establishing in court that a Will is valid. The process is designed to prevent fraud by people who might hope to gain a share of an estate by presenting a "Will" that the decedent never signed, or that was later revoked or changed. Basically, the judge must be satisfied that decedent knew what he was doing when he signed the Will, that the signature is authentic, that the Will was properly witnessed, and that the Will was never modified or cancelled. A properly-drafted Will should include a special affidavit that greatly simplifies this process.
If the validity of the Will cannot be proven it will be denied probate, and the decedent's property will pass as if he had died without a Will. This sobering fact underscores the importance of having a professionally-drafted Will.
In many simple estates, the probate process usually ends as soon as the Will is admitted to probate. In more complicated cases, some degree of "administration" will be necessary.
Administering an Estate
Administration is the process of managing and settling an estate. Administration will typically involve the following actions:
- collection of the decedent's assets;
- payment of legitimate debts and claims against the estate;
- payment of estate taxes, if any; and
- distribution of the remainder of the estate to those entitled to it.
Usually the Will designates the person, called an "executor," who will perform these functions. The executor must be approved by the judge, and must act in a professional manner to ensure the administration is done properly. If the executor acts improperly, the court may terminate the executor's authority and the executor may be sued for improper conduct.
With a properly-drafted Will, an estate will be eligible for an "independent administration." An independent administration is one in which the executor is free to act largely unsupervised (that is, "independent" of court supervision.) The independent executor may negotiate settlements with creditors, collect the assets of the estate, convert assets to cash, and distribute the remaining estate to those entitled to receive it.
Some other states routinely require the executor to return to court and obtain approval for all actions that affect the estate--a process known as "dependent administration." Usually the horror stories that circulate about the difficulties of probate originate in states that require dependent administration. As a result, many other states are reforming their probate laws to more closely match Texas' procedures.
In many estates there will be no need to appoint an executor because the decedent's assets have already been located and his debts paid, and the estate is not large enough to owe estate taxes. In such cases, all that needs to be done is to ensure that the beneficiaries under the Will have good title to the items they are receiving. Texas probate law provides a simplified form of probate called a "Muniment of Title" for use in such situations. Using this streamlined process, title to real estate, vehicles, bank accounts, and the like can easily be placed in the names of the persons designated in the Will. It is not even necessary to prepare new deeds for the decedent's land.
Unless there is some dispute over a matter such as the validity of the Will or the legitimacy of a claim against the estate, the Texas probate system is a remarkably straightforward process. We believe that once most people understand how the system works they no longer suffer from the common fears about unreasonable delays and expenses. At the Killeen law office of Roberts & Roberts, our probate lawyers handle estates throughout Bell County, including Killeen, Harker Heights, Belton, and Temple, so if these matters are of concern to you we may be able to help. Please call us.