We get asked questions every day about probate: what it is, how to probate a will, etc. Here are some of the most common Texas Probate questions we receive.
What is Probate?
Answer: Probate is the process where a court confirms death and determines who has the authority to collect assets of the estate of the deceased, pay creditors of the estate and distribute the assets of the estate either under the terms of a valid will or under law if there is no will.
If you have a will, do you always need to probate?
Answer: No. Beneficiary designations (i.e., naming a beneficiary of your retirement account, life insurance policy, bank accounts, etc.) supersede probate. Also, if you have a joint account with right of survivorship, then probate is avoided as to that account.
If I am married and the only assets owned are a house and a car, do I have to probate my deceased spouse’s will which I am named as sole beneficiary?
Answer: Sometimes. You should probate if the deceased spouse had children from a different relationship. If there are no debts and the will is consistent with the laws of intestacy, then probate can sometimes be avoided. Furthermore, sometimes titling of the deed (i.e., subject to survivorship agreement) or vehicle designation can supersede probate. A trust also avoids probate. There are many other exceptions.
Whose duty is it to probate?
Answer: If the deceased had a will, usually the person named as Executor files an application for probate. If there is no will, typically an heir will make an application to determine the heirs and the court will appoint an additional attorney to determine the heirs.
How long do I have to probate a will?
Answer: Generally, four (4) years from the date of death. There are some exceptions (i.e., will not found until after four (4) years), but if the will is probated after four (4) years, it may only be probated as a muniment of title under Texas law. If the will is not probated, property could pass by the laws of intestacy instead of the will.
What is muniment of title?
Answer: If there are no debts or other need for an executor, the court can issue an order so that the will is determined valid and property can be distributed directly to the beneficiary or beneficiaries. Since probate as a muniment of title is something unique to Texas, often out-of-state financial institutions must be given an explanation.
What are Letters Testamentary?
Answer: Typically, if assets such as stocks, bonds, investment accounts are in an individual account of the deceased (with no beneficiary designation), the financial institution (or title company if real estate is owned by the deceased) will require Letters Testamentary to show that the court has authorized the Executor to act on behalf of the estate to gather and transfer the assets. The Executor would also have the authority to deal with taxing authorities and to reimburse for those advanced funeral expenses, last illness expenses, etc. If there is no valid will and heirs can agree, an Administrator can be appointed and Letters of Administration can be granted so that the Administrator can act on behalf of the estate.
If assets of the deceased that need to be transferred are minimal, is there a simpler way?
Answer: Under Texas law, if the assets of the estate are under $75,000, then the heirs and two (2) disinterested witnesses could sign and submit a Small Estates Affidavit without the necessity of going to court. This is useful in situations when there is no will and there are little or no debts.
Will courts require an attorney to probate a will?
Answer: Since an executor has a duty to beneficiaries and creditors, the courts usually require an executor be represented by an attorney.
What information will the attorney request?
Answer: The original will (if located), death certificate, statements of all accounts, beneficiary designations, deeds, life insurance policies, stocks, bonds, car titles, boat titles, and some courts requests drivers license and Social Security information.
How long does the process take?
Answer: It depends on several questions – Will the will be contested? Are there creditor claims that will be contested? How long will it take to be in control of assets or collect assets belonging to the estate? However, generally if these are not issues, the process often takes less than six (6) months.
Is the probate process different during a pandemic such as COVID 19?
Answer: Uncontested wills can often be probated by Zoom or teleconference (varies by court) due to a temporary order by the governor. So, during the pandemic (and hopefully thereafter), you do not have to go to court! However, during the pandemic, the court process to post notice of citation of a hearing, to set a hearing, or to receive letters testamentary, etc., is often longer.