What Does It Mean to Probate a Will?
Probate is the legal process of administering a decedent’s estate, including validating a will, paying valid debts, and distributing the remaining estate assets. Probating a will essentially means proving that the will really was the decedent’s last will and testament and following the directions it outlines for settling the estate — distributing the estate’s assets and paying off the estate’s debts. While it is simple enough in theory, many people find the process overwhelming.
Every situation is different, and within each of the following steps are a myriad of sub-tasks that must be accomplished. In general, though, here is what you will need to do to probate a will in Texas:
The Probate Process in Texas: Four Common Steps
1. Validating The Will
After receiving a probate application, the probate court must first determine that the will is, in fact, the real will of the decedent and that it meets all legal requirements. When the court confirms that the will is valid, it is admitted into probate, and the probate proceedings begin.
If the decedent did not leave a valid will, the estate is generally handled under Texas State Law, and the court may appoint an administrator as the personal representative. The administrator will help determine the decedent’s heirs and handle many of the details ordinarily outlined in a will, such as naming beneficiaries.
2. Confirming The Executor or Personal Representative
If the will names an executor (the person who will be in charge of managing the estate), the court simply confirms the person’s identity. If someone challenges the choice of executor, the court will determine whether or not they have any conditions disqualifying them from performing the role, such as a felony conviction or mental disability. If no executor is named, the court will appoint one.
In Texas, executors may pursue independent administration, which allows them to act on behalf of the estate without line-by-line permission from the court. Independent executors still have the responsibility of managing the estate in accordance with the law and the decedent’s directives, but they can do it without the court looking over their shoulders every step of the way. Independent administration may be authorized by the will or established with the agreement of the beneficiaries and the court’s approval.
3. Taking Inventory of Estate Assets
Once an executor is confirmed, they have 90 days to make and file a complete record of all the estate’s assets, along with a description and value of each asset. The court may grant an extension if you need more time, but don’t put it off.
The inventory should identify estate assets such as real estate, personal property, bank accounts, investments, and other property owned by the descendent. Determining the value of some assets may require an appraisal by a professional.
Retirement accounts, life insurance policies, and other assets with valid beneficiary designations may pass outside probate, depending on the account or policy terms. The executor should keep separate records of assets that are not passing through probate, along with the estate’s debts, taxes, and expenses.
4. Paying Debts and Distributing The Assets
When it’s finally time for everyone to get their money, the first slice of the pie always goes to anyone with a claim against the estate. If the decedent took out any loans or has any outstanding bills, they must be paid out of the estate, liquidating assets if necessary.
The executor must also identify and address creditor claims, pay any required taxes and probate-related expenses, and provide required notices to creditors and beneficiaries. Only when the executor is completely satisfied that all debts and other obligations have been settled should they begin distributing the remaining assets to the beneficiaries identified in the will, or to the heirs identified by the court if there is no will.
How Long Does Probate Take in Texas?
How long probate takes depends entirely on the specific situation. An estate with only one heir and a very simple will might be settled in just a few months, while wills with more complicated directives and multiple beneficiaries and creditors can take several years. And of course, if someone decides to contest the will, probate litigation can make the process take longer.
When is Probate Not Necessary?
There are times when probate is not necessary. For example, assets that are left in a properly funded living trust generally do not go through probate. Life insurance benefits are paid according to the policy, and a living spouse may be able to automatically assume ownership of an estate in “community property” states like Texas. But probate is required more often than not. Someone might set up a trust so that their heirs do not have to go through the probate process only for the heirs to find that the trust did not specifically cover every one of the decedent’s assets—requiring them to go through probate anyway.
Luckily, with a good understanding of how probate works and careful estate planning, the probate process doesn’t have to be painful. Keep good records every step of the way.
Get Help Navigating the Texas Probate Process with Hammerle Morris
Probate terminology can be confusing, but you do not have to navigate the legal process alone. If you need help probating a will, or understanding your responsibilities as an executor or administrator, schedule a consultation with one of the experienced probate attorneys at Hammerle Morris.
Virginia Hammerle is a licensed Texas attorney whose practice includes estate planning, probate, guardianship, and litigation.
This article is for informational purposes only and does not constitute legal advice.
