When a person passes away in Texas, their estate is likely to go through the probate process. However, not all assets must be subject to succession, and even if an inheritance is required to go through a succession, not all assets are subject to the probate process. The threshold for assets that require probate in Texas is set forth in the Texas Estate Code and includes the total value of the estate's assets, excluding family property and exempt property. Probate is the legal process by which a court recognizes the death of a person and oversees the payment of their debts and distribution of their assets.
The court's role is to facilitate this process and protect, when necessary, the interests of all creditors and beneficiaries of the estate. The executor has four years from the date of death of the testator (the person who drafted the will) to apply for probate. If the executor does not file within this period, the laws of intestate succession (when there is no will) will govern how the assets are distributed. The entire succession process can take up to a year or longer if the original will cannot be located or if it is contested. It should be noted that certain assets are not distributed during probate but are transferred in some other way.
These assets are called non-testamentary assets and may include insurance policies, IRAs, KEOGHs, pensions, profit sharing, and 401(k) plans. These assets are transferred directly from the company or bank that holds them to the beneficiary listed on the policy or account documents. Without legal representation from a Texas probate attorney, navigating the probate process can be overwhelming. Some courts will not allow people who are not lawyers to file requests to legalize a will or an inheritance, nor will they allow people who are not lawyers to represent an inheritance in court. In addition, it can be particularly difficult if there are several beneficiaries or if a decision must be made regarding the type of succession to be submitted. The simplest probate process is governed by separate management procedures.
In this situation, the court appoints a trustee who submits an inventory of all assets and a list of people who owe money to the estate. Once the inventory is archived, the administration of the estate continues without approval from the probate judge. More than 80 percent of legalized properties in Texas are independently managed. Texas law allows a person who writes a will to include a provision for independent administration of their estate after death. A dependent administration procedure refers to court involvement with a dependent administrator who must obtain approval from the probate judge at every step of the process.
This usually happens when beneficiaries fight over the will or estate of the person who died. After filing an application for succession, there will be approximately a two-week waiting period before a hearing is held for approval. During this time, the county clerk will post a notice in court stating that a request for probate was submitted as notice to anyone who might challenge it. If no challenges are received, then administration begins with an executor or estate administrator appointed by court. The executor must prepare an inventory, an appraisal, and a list of claims under oath to be accurate to their best knowledge within 90 days of appointment. If there was a valid will, then executor must notify beneficiaries of estate.
If no application was filed then Texas probate court must determine inheritance which can be difficult without legal representation. With legal representation from a Texas probate attorney, parties interested in decedent's estate can file procedure to determine inheritance in county where property is located. In addition to heirs themselves, secured creditor or qualified representative of deceased can also initiate proceedings as parties interested in inheritance. The executor must also notify creditors of decedent's death and give them opportunity to file lawsuits against estate which can be legally made in Texas with notice published in local newspaper. Typical debts include medical bills, mortgages, and household expenses which must be resolved outside estate.
