Upon the passing of an individual, all his assets or belongings need to be probated. But how does this process of probation exactly work in Texas? Who needs to be involved in this inheritance? What rules and laws are applicable? And how much time would all the setting down procedure take?
To know the answers to all these questions, Let’s start with the basics and understand what probate is and its process.
Understanding Probate in Texas
What is Probate?
In simple words, probate is a process of formally transferring a deceased person’s wealth or assets to its dedicated owners. Not only the estate (the departed person’s assets) is passed down, but the debt also has to be settled from that capital during probation.
This process is opted for when there has been no will priorily composed before the person’s demise. If a will is clearly written, this phase will be used only to authenticate the assets, and the heirs will receive their share accordingly.
When is Probate Required in Texas?
In Texas, probate is required under certain circumstances to ensure the proper administration and distribution of a deceased person’s estate. Probate is typically necessary when:
The Decedent Left a Will: If the deceased person left a valid will, probate is required to authenticate the will and appoint the executor named in the will to manage the estate.
The Decedent Did Not Leave a Will: In case of the non-existence of a will, probate is needed to appoint an administrator to distribute the estate according to Texas intestacy laws.
Transfer of Titled Assets: Probate is necessary to transfer ownership of assets that are solely in the decedent’s name, such as real estate, vehicles, and bank accounts, without a beneficiary designation.
Resolving Debts and Claims: The decedent’s debts and taxes need to be paid, and any claims against the estate should be settled and this is done under the probate process.
Disputes Among Heirs: If there are disputes among heirs or beneficiaries about the distribution of the estate, probate provides a formal path to resolve these issues and mutually settle on a decision.
Types of Assets Subject to Probate in Texas
Individually Owned Real Estate: Property solely in the decedent’s name or as tenants in common with others.
Bank Accounts: Accounts solely in the decedent’s name without a payable-on-death (POD) beneficiary.
Vehicles: Cars, boats, and other vehicles titled solely in the decedent’s name.
Personal Property: Items such as jewelry, furniture, artwork, and other tangible assets.
Investment Accounts: Accounts solely in the decedent’s name without a transfer-on-death (TOD) designation.
Business Interests: Sole proprietorships or shares in a corporation or LLC that don’t have succession plans or agreements in place.
Life Insurance Policies and Retirement Accounts: If the decedent did not name a beneficiary, these can fall into the probate estate.
Debts Owed to the Decedent: Promissory notes, loans, or other receivables owned by the deceased.
Probate Process in Texas
Submission and Petition: The first step is to submit the will to the deceased person’s county court and file a petition for probate. This must be done within four years of their death.
Public Notice: The county clerk posts a public notice regarding the petition, allowing potential heirs to contest the will. This notice typically remains up for two weeks.
Verification of the Will: If there are no challenges to the will, the court confirms its validity, granting legal authority to the executor to start managing the estate.
Asset Inventory: Within 90 days of receiving authorization, the executor must inventory the deceased’s assets, determining their value and identifying any debts or taxes to be settled.
Beneficiary Notification: The executor informs the beneficiaries named in the will about their entitlement to estate assets. If there are no named beneficiaries, state law dictates the inheritance.
Creditor Notification and Debt Settlement: Creditors must be contacted to file any claims, and estate funds are used to settle debts, bills, and taxes.
Asset Distribution: The remaining assets are distributed to the beneficiaries as per the will.
Estate Closure: The executor attends a hearing to request the court to officially close the estate, concluding the probate process.
In Texas, there is also a simplified probate option called a “muniment of title” for estates meeting specific criteria. It allows for direct asset transfer to beneficiaries without full administration, taking as little as 30 days to complete.
What Happens if You Don’t Probate a Will in Texas?
Legal Transfer of Assets: Without probate, the deceased person’s assets may not be legally transferred to the intended beneficiaries or heirs. This can create legal issues for those trying to claim ownership of the assets.
Title Issues: Real estate and other titled assets (like vehicles) cannot be legally transferred without going through probate. This can result in complications when trying to sell or mortgage such property.
Access to Accounts: Bank accounts and other financial assets in the deceased’s name may remain inaccessible to the heirs without probate, potentially leading to financial difficulties.
Debts and Taxes: Probate ensures that the deceased’s debts and taxes are properly paid. Without probate, creditors may pursue legal action against the estate or its heirs.
Disputes Among Heirs: The lack of a formal probate process can lead to disputes among heirs or beneficiaries over the distribution of the estate, potentially resulting in costly and prolonged legal battles.
Statute of Limitations: In Texas, there is a four-year statute of limitations for submitting a will for probate. Failing to probate within this time frame can result in the will being disregarded, and the estate may be distributed according to intestacy laws as if the deceased died without a will.
Beneficiary Rights: Without probate, beneficiaries may not receive what they are entitled to under the will, and their legal rights may be compromised.
How Long Does Probate Typically Take in Texas?
The probate process in Texas takes between six months to a year to complete, though the duration can vary based on the complexity of the estate and any potential disputes. The process begins with filing the will and an application for probate with the probate court. This is followed by a mandatory waiting period of at least two weeks, during which notice is given to beneficiaries and creditors. Once the court validates the will and appoints an executor, the executor must inventory and appraise the estate’s assets, which can take additional time depending on the size and complexity of the estate.
The executor also needs to settle any debts and taxes before distributing the remaining assets to beneficiaries. If there are disputes among heirs or challenges to the will, the process can be prolonged significantly. Simpler estates with straightforward assets and no disputes may move through probate more quickly, while larger or contested estates can take longer to resolve.
Conclusion
The probate procedure is a necessity to lawfully and easily transfer assets to the new beneficiaries. This keeps the disputes under control and ensures a formal asset inheritance process.
If you are facing difficulty in probating estate, consult our probate attorney in San Antonio, Comanche, and New Braunfels to ease the process for you!