What is Probate?

While most people have heard of probate law, many still wonder, “What does probate mean?” Probate is a legal process that takes place after someone dies. The deceased person’s will needs to be proven to be valid. In most cases, this is done easily, unless the will is contested for some reason.

The deceased person’s property is catalogued and appraised to determine its value, and the person’s outstanding debts and taxes are paid. When that is done, the remaining property is distributed amongst the beneficiaries, as indicated in the will. If there is not a will, state law determines how the remainder of the deceased person’s belongings are distributed.

What is Probate Court?

Probate court is the portion of the judicial system that handles wills, estates, conservatorships and guardianships. The court rules on the authenticity of contested wills and whether or not the deceased person was mentally competent when they signed it, and enforces the proper distribution of the will based on the assets of the deceased and other laws.

How Long Does Probate Take?

The length of time it takes to complete probate depends on whether or not there are complications involved. If the estate is not taxable, and isn’t contested, the process is usually completed within a year; however if there are disagreements, it can take several years. A good probate lawyer can help minimize the delay.

Sometimes, people hear the probate definition and get a little nervous. Fortunately, in Texas, the probate process is often simpler than it is in many other states, and sometimes going through court isn’t necessary when inheritances have been laid out through financial relationships and agreements that are built into the accounts, and policies that the deceased person had before their death. These include:

  • Proceeds from life insurance policies
  • Benefits for a survivor as indicated in an annuity
  • Back accounts that have “payable on death” provisions
  • Joint tenancy property that indicates a right of survivorship
  • Community property that carries a right of survivorship

When a formal probate is necessary, it happens in one of two ways: through the independent administration of estates, or the dependent administration of estates.

Independent administration happens when a specific person is named as the executor of the estate. If an executor has not been formally named, an independent administration probate can still be filed if all beneficiaries listed in the will can agree on a person to act as the executor on the estate.

With an independent administration process, the executor will not need to post a bond as insurance that he will not cause losses to the estate due to dishonesty or carelessness. The will will also be able to proceed with the process of settling the estate without getting permission from the court. They can set aside an allowance for the family, pay off debts, sell estate property, and distribute assets to people that are supposed to inherit them.

Even in a straightforward independent administration, the executor still needs to publish a notice that will inform potential creditors of the person’s death and file an inventory of assets with the court. The executor is eligible to receive a five percent commission on any money that is used in conjunction with managing the estate. For example, money used to pay bills is eligible. Money that has been designated to go to beneficiaries is not.

Dependent Administration

With a dependent administration of estates, the court is more deeply involved in the probate process, and hiring a probate attorney will likely be necessary. Estate assets are transferred through a title process if there is a valid will, no unpaid debts other than real estate, and Medicaid is not entitled to recover benefits from the deceased person.

When estates are relatively small, neither open court nor muniment of title is needed. This can happen if there is not a will, and the probate estate is valued at less than $50,000. The beneficiaries can prepare a sworn statement to collect the property. Executors can use a simplified process when property value is not more than what is needed to pay creditors and the family allowance. If the funeral and final medical bills are paid, and any remaining money does not exceed the family allowance, the court will issue a no administration order, and anything left will go directly to the surviving spouse and any minor children.

Contact an attorney at Wright Probate to help you with your probate case. The Wright Firm, LLP is a Texas law firm that serves the State of Texas including, but not limited to the following counties:

  • Baldwin County
  • Bexar County
  • Dallas County
  • Denton County
  • Collin County
  • Cooke County
  • Ellis County
  • Erath County
  • Fannin County
  • Grayson County
  • Harris County
  • Hood County
  • Houston County
  • Hunt County
  • Johnson County
  • Kaufman County
  • Macomb County
  • Montague County
  • Montgomery County
  • Navarro County
  • Nueces County
  • Parker County
  • Palo Pinto County
  • Rains County
  • Rockwall County
  • San Antonio County
  • Shelby County
  • Somervell County
  • Tarrant County
  • Travis County
  • Van Zandt County
  • Wayne County
  • Wise County