What is Probate?
The term Probate is used in reference to the court or legal process through which the disposition of the remaining assets and liabilities of a deceased person occurs. An easily authenticated will and estate planning tools can be used to avoid much of the time and expense of probate.
Either an executor named in the deceased’s will or an administrator (if there is no will) is appointed by the probate court to collect the assets of the deceased, pay liabilities where appropriate, and distribute the assets of the estate to beneficiaries or heirs.
Probate with a Will
When a person dies with a valid will, the Executor named in the will is responsible for initiating the probate process by filing an application to probate with the appropriate probate court within 4 years from the date of the death of the deceased. Once the probate court determines the will to be valid under Texas law, the Executor has the legal power to act on behalf of the deceased.
Contact a Houston probate attorney at The Tholstrup Law Firm, L.P. online or at (713) 533-8457 to schedule a consultation.
An Executor approved by the probate court is responsible for locating and overseeing the collection and distribution of the assets and payment of the liabilities of the deceased. The Executor’s inventory of the deceased’s assets and liabilities must be filed and approved by the court. The Executor is responsible for selling or transferring assets per the wishes of the deceased as specified in the deceased’s will.
Probate without a Will
When a person dies without a will, he is termed to have died intestate. This can also be true if the will presented to the court is found to be invalid.
The intestate probate process begins with the appointment of an Administrator who functions largely as an Executor, but may have more court supervision of the actions taken.
The Administrator’s function is to locate legal heirs of the deceased, including the surviving spouse, children and more distant relatives as needed. The laws of intestate distribution control what assets need to be distributed and how they are to be distributed among the legal heirs. The distribution has to ultimately be approved by the court.
Is Probate Required?
Probate laws in Texas generally allow an estate of less than $75,000 to avoid the probate process. If the estate qualifies, there are alternate legal actions, such as an affidavit filed with the court, Department of Motor Vehicles or with a financial institution.
Asset that have contractually designated beneficiaries or a assets jointly owned with a right of survivorship can bypass the probate process.
The most expensive and time consuming scenario is when no planning is done. If a person dies without a Will, Will Bypass instruments or a Trust, title to property is conveyed by “Intestate Succession”. Intestate Succession through a probate proceeding generally involves an Heirship Proceeding and an Administration of the Estate. With a minimum of estate planning, this time and expense (to those left behind) can be avoided.