Many people are afraid of the probate process. This is often because we hear the horror stories of the process dragging out for years or even decades. But one person’s story may not actually be the story you’ll tell. This is because every probate process varies by state. Each state has its own requirements and procedures. Further, each individual case is unique. Determining whether your loved one’s will requires a simple or complex probate process is actually fairly simple.
The probate process involves paperwork and court appearances.
What is probate?
Probate is the formal process that takes place after someone dies. It gives recognition to the will and appoints the executor or personal representative who will administer the estate and distribute assets to the rightful heirs as established by the will. The process also involves proving that a deceased person’s will is valid and paying all necessary debts. To do so, an executor can present the will to a court on their own or hire an attorney to help them through the process.
Depending on the size and potential challenges, probate can be classified as simplified or complex.
How does the probate process work?
The general process of probate is once a person dies, the individual named as the executor of the will presents it to a county judge. It is this act that triggers the probate process. Simplified and complex probate each go through a similar process. For example, all heirs and beneficiaries named will be notified by the executor once probate is opened. In addition, the personal representative must also notify all creditors in the manner required by their governing state’s law. From there, state law determines how long creditors have to file a claim against the estate.
What is simplified probate?
Often called summary probate, the simplified probate procedure is typically available for small estates. Individual state laws determine an estate’s size. Further, U.S. states have different definitions of summary probate. But most states have summary probate as an option if the estate size doesn’t exceed a certain limit.
The easiest way to determine if your loved one’s estate meets your state’s limitations is to take inventory of a decedent’s assets. Once that it is done, add up the value of the estate and ensure that it does not exceed the state’s limit on summary probate.
Take note, there are some assets that don’t go through regular probate and are not counted toward the summer probate estate. Those assets include:
- Joint tenancy property
- Retirement benefits
- Payable-on-death bank accounts
Levels to Probate in Texas
Texas offers some probate shortcuts for what are considered small estates. The state has procedures that make it easy to transfer property left by a person who has died.
Texas has a procedure that allows inheritors to skip probate altogether. In Texas, if the deceased’s entire estate, not including the homestead and other exempt property, is $75,000 or less, they may be able to use an out-of-court affidavit. Further, the out-of-court affidavit is available in Texas if there is no will.
The affidavit must include the following information:
- A statement that the necessary conditions are met
- List of all known estate assets and debts
- List of assets the inheritor claims are exempt
- Names and addresses of each inheritor the relationship between the inheritors and the deceased person to establish their legal right to inherit the property
- Two witnesses and each inheritor must sign the affidavit
Once the affidavit is submitted, there is a 30-day waiting period. Furthermore, witnesses must have no legal right to inherit the property. This procedure makes it easier to transfer the deceased’s property without the normal probate court proceedings. An out-of-court affidavit typically saves time, money and the hassle.
Texas also has a simplified probate process for smaller estates. This process can be tapped when an executor files a written request with the local probate court asking to use the simplified procedure. Generally, the simple probate process can be used when the value of the property doesn’t’ exceed the value of the homestead, exempt property, and what’s needed to pay the family allowance and certain creditors, according to the Texas Estates Code.
Even in the simplified probate process, the executor must still file an inventory, the appraised value of the property and a list of creditor claims against the estate. Sometimes, the court will require the executor to pay a bond—which is a type of insurance that protects the estate from wrongful conduct by the executor.
What is complex probate?
There are real issues that can take probate from a simple process to a more complicated process. Often, probate can go from simple to complex when disputes arise in a large estate. Complex probate typically involves the following situations:
Will contests. An interested person may choose to challenge the entire Will’s validity.
Administrator appointments. In the event the deceased did not leave a will and the family cannot agree on who should serve as an executor, there may be a hearing to establish the estate’s administrator.
Executor fee disputes. Whenever there is an interested person who believes the personal representative has overcharged the estate. There are steps that can be taken to recoup the overcharged.
Formal accountings. This occurs when an interested party believes the executor is not providing all of the relevant information.
Spousal elective share. If a surviving spouse exercises the right to claim a portion of the estate.
Guardianship disputes. Disputes over the guardianship of minors aren’t technically a probate matter; however, the court hears these matter just the same.
Trustee removals. If a will forms a trust, a dispute over the Trustee’s appointment may result in probate litigation.
Do all assets need to go through probate?
Not all assets are required to go through the probate process. However, there are some property items that are always subject to probate. These items are typically called the “probate estate” and require probate court proceedings. Essentially, probate proceedings are only necessary for a property that was:
- Owned solely in the name of the deceased person (example: real estate or a car title in that person’s name alone.)
- A share of property owned as “tenants in common” (example: investments)
Typically, it’s the responsibility of the executor named in the will to open a case in probate court and follow the probate process through to its conclusion. With this in mind, if there is no will or the will doesn’t name an executor, the court will appoint someone to serve in the role.
Assets that don’t need probate
Customarily, most assets don’t need to go through probate. Probate may not be necessary if the deceased person was married, co-owned most of their possessions or did some planning to avoid probate.
The assets that don’t typically need to go through probate include the following:
- Retirement accounts (IRAs or 401ks)
- Pension plan distribution
- Wages, salary or commissions owed to the deceased (up to a certain amount)
- Household goods and other items
- Vehicles that go to immediate family members under state law
- Life insurance proceeds
- Property in a living trust
- Funds in a payable-on-death bank account
- Securities registered in a transfer-on-death form
- The U.S. savings bonds registered in the pay-on-death form
- Co-owned U.S. savings bonds
- Property held in joint tenancy with right of survivorship
- Property owned as tenants by the entirety with a spouse (not available in all states)
Some states allow for real estate, cars, boats to be transferred after a person dies. These are called transfer-on-death (TOD) deeds. A qualified estate planning attorney would be able to help you determine if this is an option for you in your state.
The role of the executor
The executor’s responsibility extends far beyond than handing out money to the heirs and beneficiaries of a will. The executor will then need to prepare an inventory of the deceased’s assets. The inventory must include the following two things:
- A list of the deceased’s possessions
- The value of those possessions
Once the inventory is completed, the law may require the executor to post a bond—an insurance-like policy. The bonding company will reimburse beneficiaries or heirs for assets stolen during the administration of the estate.
Settling the debts of the deceased
The executor must settle all outstanding balances the deceased is carrying with his, her or their various creditors. As such, during the probate process, the executor is responsible for handling the following:
- Pay any debts of the estate
- File the last tax return
- Pay required federal and state estate taxes
Lastly, the executor is required to have a final statement of all debts and taxes paid.
The Carlson Law Firm has Compassionate Probate Attorneys
The Carlson Law Firm has a team of experienced and dedicated Texas Probate Attorneys. Our firm operates with a client-first mindset and will be there with you every step of the way through the probate person. Even simple probate is not as simple as it sounds. The entire process requires knowledge of what needs to be filed with the court at different points throughout the process.
Contact us today for a free case evaluation, or to schedule an appointment with a compassionate Texas probate attorney.