The probate process in Texas can be extremely daunting and confusing if you are unfamiliar with it. With all the legal paperwork and court proceedings, it’s easy to get lost in the shuffle.
In this article, we hope to answer some of the most common questions about the Texas probate process to give those who may be unfamiliar a better understanding of what’s involved.
What Is Probate?
Probate is the legal process of proving that a will is valid and that their estate is distributed in accordance to their final wishes. The independent executor of the estate files a petition with the court to open probate. Once probate is open, the independent executor manages the estate according to the terms of the will and Texas law.
The purpose of probate is to:
- Prove the validity of the will
- Identify and inventory the decedent’s assets
- Pay debts and taxes from the estate
- Distribute assets to beneficiaries according to the will, or, if there is no will, in accordance to Texas intestacy laws
- Close the estate when all debts and taxes have been paid and all assets have been distributed.
Who Needs to go Through Probate in Texas?
Assuming the decedent died with a will in place, probate is generally required in Texas if the estate includes:
- Real property worth more than $75,000, or
- Personal property worth more than $75,000, or
- Any combination of real and personal property that totals more than $75,000.
If the decedent died intestate, then probate may still be required depending on the value of the estate and who is entitled to inherit under Texas law.
How Long Does the Texas Probate Process Take?
The Texas probate process can take anywhere from a few months to a year or more, depending on the complexity of the estate and the willingness of the parties involved to cooperate. If the estate is small and there are no disagreements among the heirs, the process can be completed relatively quickly. However, if the estate is large or there are disputes among the heirs, the process can take much longer.
What Assets are Subject to Probate in Texas?
When probate proceedings begin, the court will appoint an executor to oversee the distribution of assets, and all debts and taxes must be paid before any assets can be distributed to the beneficiaries.
The following assets are subject to probate in Texas:
- Real property, such as a house or land
- Personal property, such as cars, jewelry, or furniture
- Financial accounts, such as savings or investment accounts
- Business interests or other professional licenses
If the decedent had any outstanding debts, the debts must be paid off before any assets can be distributed to the heirs. The executor will need to file a Petition for Probate with the court, and notify all interested parties of the death. Once the court has granted authority to the executor, they will begin gathering all of the decedent’s assets and distributing them according to the terms of the will.
How Much Does It Cost to go Through Probate in Texas?
The Texas probate process can be costly, depending on the size and complexity of the estate. The court will appoint an executor to oversee the process, and he or she will be responsible for paying all required fees. These include filing fees, publication costs, and attorney’s fees.
Who Handles the Texas Probate Process?
An individual that is named as the executor in the decedent’s will or their spouse may begin the probate process in Texas.
The first step is to file a petition with the probate court in the county where the decedent lived. The court will need to be provided with a copy of the death certificate, the original will (if there is one), and a list of the decedent’s assets and debts. A filing fee will also need to be paid.
Once the petition is filed, the court will issue Letters Testamentary, which appoints an individual as the executor of the estate. With these letters, the independent executor will be able to open a bank account for the estate and begin paying debts and distributing assets according to the terms of the will.
If there is no will or no one is named as the executor in the will, then an administrator will be appointed by the court to administer the decedent’s estate.
What Happens if There is No Will in Texas?
If there is no will in Texas, the estate will be distributed according to the state’s intestacy laws. In Texas, the order of inheritance without a will is the following:
- The surviving spouse and children: The deceased person’s surviving spouse and children will inherit the deceased person’s assets. If there is no surviving spouse, the children will inherit the assets. If there is no surviving spouse or children, the assets will be distributed to the next level of heirs.
- The deceased person’s parents: If the deceased person did not have a surviving spouse or children, the assets will be distributed to the deceased person’s parents. If only one parent is still alive, that parent will inherit the entire estate. If both parents are still alive, they will inherit the estate equally.
- The deceased person’s siblings: If the deceased person did not have a surviving spouse, children, or parents, the assets will be distributed to the deceased person’s siblings. If the deceased person had more than one sibling, the assets will be divided equally among them.
- The deceased person’s grandparents: If the deceased person did not have any surviving spouse, children, parents, or siblings, the assets will be distributed to the deceased person’s grandparents. If the deceased person had more than one grandparent, the assets will be divided equally among them.
- The deceased person’s aunts, uncles, and cousins: If the deceased person did not have any surviving spouse, children, parents, siblings, or grandparents, the assets will be distributed to the deceased person’s aunts, uncles, and cousins. The assets will be distributed to the nearest degree of kin first.
- The State of Texas: If the deceased person did not have any surviving heirs, the assets will be distributed to the State of Texas.
It’s important to note that Texas law states that if there is a surviving spouse and children, the spouse will receive 1/3 of the estate and the children will receive 2/3; if there is no surviving spouse, the children will receive the entire estate.
It’s also important to note that this is a general order and there may be specific nuances or exceptions depending on the case, so it’s always advisable to consult with an attorney who has experience in probate court, they can give you a more accurate and detailed explanation of how the intestate succession will work in your specific case.
Can the Probate Process be Avoided in Texas?
In Texas, the probate process can be avoided if the decedent’s estate is small enough and if all of their debts have been paid. The decedent’s estate is considered small enough if it is worth less than $75,000.
The decedent’s spouse or an heir must file an affidavit with the court that states that the estate is worth less than $75,000.
What is Disinheritance?
In Texas, disinheritance is the legal process of excluding someone from inheriting property from an estate. This can be done for a variety of reasons, including if the person is not financially responsible or if there is bad blood between the person and the estate owner.
To disinherit someone in Texas, the estate owner must specifically state in their will that they are excluding the person from inheritance. Without this explicit language, the person will still inherit a portion of the estate according to Texas law.
There are a few exceptions to this rule. For example, if the excluded person is also the executor of the will, they will still inherit their share of the estate. Additionally, if the excluded person is a spouse or child of the deceased, they may still be entitled to a portion of the estate under Texas law.
What Is an Executor?
An executor is the person who is responsible for handling the estate of a deceased person. This includes tasks such as gathering the decedent’s assets, paying debts and taxes, and distributing the remaining assets to heirs. The executor must be named in the will or appointed by the court if there is no will.
The Takeaway
The Texas probate process can be a complicated and lengthy one. Knowing the answers to these common questions can help you navigate the process more easily. Of course, if at any point during your journey through the probate process you find yourself in need of assistance, you should reach out to an experienced attorney for further guidance. They will be able to answer all of your questions about the process and provide personalized legal advice that is tailored to meet your needs.
Do you need help with a probate matter in Austin or the surrounding area? We are Austin probate attorneys. We help clients navigate the probate process. Call today for a free confidential consultation, 512-273-7444.
Our Austin Probate Attorneys provide a full range of probate services to our clients, including helping with probate disputes. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
