Probate, the legal process of administering a person’s estate after they pass away, can be a complex and time-consuming process, particularly if the deceased person, called a decedent, had significant assets or debts.
In the state of Texas, there are many legal requirements that must be met to properly administer an estate.
These include filing various court documents, notifying creditors, and distributing assets to beneficiaries. Failure to comply with these requirements can result in delays, disputes, and potential legal liabilities.
You can read more about probate in Texas below. If you have any questions, please contact us online or call (254) 252-3590.
Texas Probate Law
The Texas Estates Code governs the probate process in Texas. It establishes the legal framework for:
- Validating a will;
- Administering the estate of a deceased person, also known as the decedent;
- Resolving outstanding debts; and
- Distributing assets according to the decedent’s wishes.
The Estates Code also dictates the process when there is no will, following the state’s intestacy laws to ensure an orderly distribution of assets.
Understanding Probate in Texas
Texas probate law provides two main avenues for probating an estate, independent administration and dependent administration. The key difference between dependent and independent administration is the level of court involvement.
Independent administration is the preferred method, as it allows the executor or administrator of the estate to handle most aspects of the probate process without court intervention.
The executor or administrator in an independent administration has more freedom to act without court approval.
Dependent administration, on the other hand, requires court oversight for many aspects of the probate process. It’s typically used in cases where there is potential for conflict among the beneficiaries or where the estate is particularly complex.
The type of administration will depend on the specific circumstances of the case, but in either situation, there are specific laws and procedures that must be followed.
Step 1: Identify the Executor or Administrator
The first step in administering a decedent’s estate is to identify the executor or administrator of the estate.
If the decedent had a will, the executor will be named in the will. If there is no will, or if the named executor is unable or unwilling to serve, the court will appoint an administrator to manage the estate.
The executor or administrator will be responsible for managing the estate, making sure debts are paid, and distributing assets according to the terms of the will or the laws of intestacy.
The Role of Executors and Administrators
The court appoints an executor if a will exists or an administrator if there’s no will, based on specific criteria to oversee the probate process, ensuring appropriate handling of the deceased’s estate. Acting in the capacity of fiduciaries, these representatives have legal obligations and a position of trust toward the estate, including:
- Inventorying assets and debts—creation of a comprehensive list of the estate’s assets and liabilities;
- Debt settlement—responsibility for paying off the decedent’s debts with estate funds while prioritizing claims according to Texas law;
- Tax filings—ensuring all necessary tax returns are filed and payment of any taxes; and
- Asset distribution—distributing the remaining estate assets to beneficiaries as outlined in the will or intestacy laws.
Administrators follow state law, while the executor’s responsibilities are to carry out the deceased’s wishes as specified in the will.
Step 2: File the Will
If the decedent had a will, the executor must file the will with the probate court in the county where the decedent lived. This must generally be done within four years of the date of the decedent’s death.
The court will review the will to ensure that it meets the legal requirements for a valid will in Texas and to confirm the identity of the executor.
Once the court approves the will, it will issue letters of testamentary to the executor, giving them the legal authority to act on behalf of the estate.
Step 3: Notify Creditors
After letters have been issued by the court, the executor or administrator must give notice to all known creditors of the estate.
This notice must be published in a newspaper in the county where the deceased person lived, and it must be mailed to all known secured creditors.
The purpose of the notice is to allow creditors to file a claim against the estate if they believe they are owed money.
Step 4: Collect and Inventory the Estate Assets
The executor or administrator must collect all the assets of the estate, including bank accounts, real estate, personal property, investments, and any other assets that the deceased person owned.
The executor or administrator must then determine the value of each such asset as of the decedent’s date of death and list it in an inventory.
The inventory is required to be filed with the court within 90 days of the executor or administrator’s appointment.
Step 5: Pay Debts and Taxes
The executor or administrator is responsible for making sure all debts and taxes owed by the deceased person and the estate are paid.
This includes filing any necessary tax returns and paying any income or estate taxes that are due.
The executor or administrator must also pay any valid claims filed by creditors against the estate.
Step 6: Distribute the Assets
Once all debts and taxes have been paid, the executor or administrator can distribute the remaining assets of the estate to the beneficiaries named in the will.
If there is no will or if the will does not specify how assets should be distributed, they will be distributed according to Texas law.
Step 7: Close the Estate
Once all assets have been distributed, the executor or administrator can petition the court to close the estate. The court will then issue an order releasing the executor or administrator from further duties and responsibilities related to the estate.
Why Legal Representation Matters
While Texas allows self-representation in some legal matters, probate is a domain best navigated with an experienced attorney for several reasons:
- Complexity of probate law. Texas probate law can be intricate, with specific procedures and deadlines. An attorney ensures you navigate the process efficiently and avoid costly mistakes.
- Interpretation of wills. Wills can be open to interpretation, and legal expertise is crucial to ensuring the decedent’s wishes are accurately understood and fulfilled.
- Potential for disputes. Disagreements among beneficiaries or challenges to the will are not uncommon. An attorney can represent your interests in court and protect your rights.
- Tax implications. Probate can have significant tax consequences. Legal counsel can help you navigate tax complexities and minimize potential liabilities.
Having a Waco probate lawyer during the probate process can ensure proper handling of all matters and help you avoid unnecessary stress and complications.
How Can an Attorney Help Me with Probate?
A probate attorney who is familiar with Texas probate law can help ensure that all of these requirements are met in a timely and efficient manner, reducing the risk of errors and delays.
In addition to legal complexities, there are often emotional issues that can arise during the probate process. Heirs may disagree about how assets should be distributed or who should be appointed as executor of the estate.
An experienced probate attorney can help mediate these disputes and find a resolution that is fair and equitable for all parties involved.
Another important reason to hire an attorney to administer a decedent’s estate in Texas is that there are many potential legal pitfalls that can arise during the probate process.
For example, there may be issues with the validity of the decedent’s will, or creditors may make claims against the estate that need to be resolved.
An attorney can help identify and address these issues before they become major problems, potentially saving the estate time and money in the long run.
Finally, working with an attorney can provide you with peace of mind. Administering an estate can be a daunting task, particularly for someone who is unfamiliar with the legal requirements involved.
By hiring an attorney, you can be confident that you are fulfilling your legal obligations properly and efficiently.
Prohibition on Self-Representation for Administrators and Executors
In Texas, while individuals are generally allowed to represent themselves in most legal matters, this does not extend to executors and administrators representing an estate in probate court.
The law mandates that an estate must have legal representation by a licensed attorney. This is so because, rather than acting in their individual capacity, the executor or administrator is representing the estate.
Representing an estate in probate requires legal expertise in complex matters that only a licensed attorney possesses. Handling these matters without legal representation can have significant legal and financial consequences for the executor, administrator, and estate.
Get in Contact with a Probate Attorney in Waco, Texas Today
Probate can be a difficult and demanding process. If you are facing probate in Texas, it is important to consult with a probate attorney in Waco who can help you navigate the process, protect your interests, and ensure that your loved one’s wishes are honored.
In Waco and the surrounding areas, The Zimmerman Law Firm is here to help. Contact us online or call (254) 252-3590 today.
Where You Can Find Our Waco, TX Office
Probate FAQs
Probate is the legal process of administering the estate of a deceased person, including distributing their assets and settling their debts. It is necessary in Texas to transfer ownership of property and assets from the deceased person to their heirs or beneficiaries.
The first steps you should take after a loved one dies in Texas include contacting a funeral home, obtaining a death certificate, notifying family and friends, and locating the deceased person’s will and other important documents.
If the deceased person did not have a will, their estate will be distributed according to Texas laws of intestacy. This means that their assets will be distributed to their closest living relatives.
The length of the probate process in Texas varies depending on the complexity of the estate and any disputes that may arise. Generally, it can take anywhere from six months to several years.
An executor can be removed in Texas for several reasons, including misconduct, conflicts of interest, or failing to perform their duties.
Estate planning provides several ways to avoid probate in Texas, including setting up trusts, executing lady bird deeds or transfer on death deeds, and utilizing beneficiary designations.