The Texas probate process is a complex but important facet of the law. And whether you are ready to write your Last Will and Testament (will) or are executing the will of a loved one, an experienced Texas probate attorney can help ensure your wishes are carried out after your death.
Probate can be a complicated legal process that can directly affect how your legacy will flow from you to your loved ones upon your death. It is important to better understand the Texas probate process in order to help protect your estate and to help ensure that your wishes –regarding which of your assets will go to whom –are effectively and efficiently upheld. The probate process can become exceptionally difficult very quickly, but working closely with an experienced Texas probate attorney from Ibekwe Law, PLLC can provide you with the peace of mind that comes from knowing you are protecting your legacy and your loved one’s rights to the assets you intend for them to have. Contact our compassionate and experienced estate planning attorneys at 512-505-2753 or at www.willsintexas.com to learn more about the Texas probate process and how it may impact your decisions.
What Is Probate?
While probate can be a very overwhelming legal process, it is not difficult to understand what probate actually entails. Your assets will go into probate upon your death if one of the following does not apply to the specific asset in question:
- The property has been transferred to someone else by way of a trust.
- The property has been transferred to someone else by way of joint ownership with a right of survivorship
- The property has been transferred to someone else by way of direct payment to beneficiaries, such as with retirement accounts or insurance policies
In essence, probate is the legal process by which a court officially recognizes your death and oversees both the distribution of your assets and the payment of your debts. The court will facilitate this process and, if it becomes necessary, will protect the interests of both your creditors and beneficiaries. If you have a will, the executor of that will (or your personal representative) will likely file for probate. If you die without a will, it is called dying intestate, and Texas’s laws of intestacy will govern how your estate will be distributed (which can vary considerably from your own wishes).
Independent Probate Administration
The vast majority of probate cases in Texas are done via independent probate administration, which is generally the most efficient and least costly option and which avoids the bulk of court supervision. Independent probate administration bypasses the following requirements experienced with the dependent administration of estates:
- Posting a bond to protect the estate against losses that could result from the executor’s careless or dishonest efforts
- Asking the courts permission before taking specific steps necessary to settle the estate, including establishing a family allowance, paying debts, selling property of the estate, distributing assets to intended recipients, and more
The independent probate administrator is the executor of the will, and he or she is required to publish a notice for any potential creditors out there and to file an inventory that specifies the decedent’s assets with the court. Further, the executor must gather and protect the assets of the estate until they are distributed to their rightful recipients. The dependent administration of estates is much less common, but if an executor has reason to request greater supervision by the court, he or she can do so within the Texas probate process.
The Role of the Will’s Executor
The executor of a will is charged with specific duties that must be carefully addressed in order to satisfy the requirements of the court, including:
- Compiling a complete inventory of the decedent’s assets
- Addressing the debts and other financial liabilities of the estate
- Resolving any claims the estate has against any other parties
- Filing the decedent’s final income tax return and paying any outstanding taxes
- Distributing all assets to those beneficiaries designated in the will –or to those that the state determines are heirs (if the decedent has no will)
- Partitioning any land (as applicable)
The role of a will’s executor can be exceptionally detailed, and there can also be liability involved. The surest way to ensure that a will is executed faithfully is to work closely with an experienced Texas probate attorney.
The Role of Debts in Probate
As mentioned, the decedent’s debts must be addressed in the probate process –they do not simply disappear upon death. The debts that tend to play a role in the Texas probate process include:
- The decedent’s mortgage
- Any taxes owed by the decedent
- The decedent’s pending medical bills
- Any personal, car, and/or student loans of the decedent
- And child support and/or alimony arrearages owed by the decedent
- Common expenses that are generally addressed during probate include:
- The decedent’s pending legal expenses
- The decedent’s funeral and burial costs
- Any pending accounting and tax filing expenses owed by the decedent
- Any necessary appraisals for businesses and real estate owned by the decedent
How Does Probate Impact Community Property?
As a married couple in the State of Texas, the assets that you acquire over the course of your marriage are considered community property, which is the property that belongs to both spouses. Upon one spouse’s death –and as long as neither of you has children born of another relationship –this community property becomes the sole property of the surviving spouse.
Only those properties that either of you brings into the marriage with you and keeps separate throughout –or that you both agree is separate property in a valid prenuptial or postnuptial agreement –will remain the owner’s separate property. It is important to note that establishing the property as separate is often more difficult than you might imagine.
An Experienced Texas Probate Attorney Can Help
The Texas probate process is an important component of the law. Because it is the legal mechanism by which you ensure your estate flows smoothly –and according to your wishes –to your loved ones upon your death, it is important to address it correctly, and the experienced Texas probate attorneys at Ibekwe Law, PLLC can help you do just that. We take great pride in helping our clients create estate planning documents that correlate exactly with their wishes and in helping others successfully maneuver the often-complicated probate process with their loved one’s wishes intact. To learn more, please do not hesitate to contact or call us at 512-505-2753 today.