What is probate?

Probate is the legal process for handling the probate assets and liabilities of someone’s estate after they have died. Probate assets are assets that are only in the deceased’s name which means they will not automatically pass to someone else upon their death. Oftentimes probate assets are things like someone’s home and other real estate, cars, personal belongings. Financial assets like bank accounts and investment accounts are often non-probate assets (see paragraph below). But if the account doesn’t have certain language or it doesn’t have a beneficiary form filled out to dictate where those assets should go upon death, then those assets will also be part of the probate estate.

Non-probate assets do pass to someone (or something) else automatically upon the owner’s death, so these kinds of assets do not get probated. If there is a will dictating where assets should go, it doesn’t matter. Non-probate assets are not at all affected by a will. Examples of non-probate assets are bank or investment accounts that have payable on death language or signed beneficiary forms designating where the assets should go upon death, property held in a trust, life insurance policies that name someone other than the decedent as the beneficiary, and property that is held in joint tenancy with right of survivorship.

What happens in probate when the decedent left a will?

When someone who lives in Texas dies and leaves a validly written and executed will, then the probate process is very efficient compared to what it’s like in other states. If the will has the correct language in it, then the probate court will easily allow what is called an independent administration. With an independent administration there is usually just one very short hearing at the courthouse to probate and record the will. After that the executor can go about taking care of the assets and liabilities per the terms of the will without any detailed court oversight. The executor with the help of his/her attorney will only need to file proof that creditors and beneficiaries were notified and likewise file an inventory of the estate.

What happens in probate when the decedent did not have a will?

If someone dies without a will, then there can be a very different story. First of all, even if the decedent expressed to family members where they wanted their assets to go upon their death, those assets must get distributed using very strict rules dictated by state law. The only way a distribution can change is if the person who was supposed to receive the distribution signs a document gifting their distribution to someone else. This alone can cause heartache for family members. But even with these strict rules in place, some sort of probate process still needs to take place in order to manage the liabilities and distribute the assets.

If the decedent’s assets (not including their homestead if they had one) aren’t worth more than $75,000, and certain other criteria are met, then it may be possible to use what is called a small estate affidavit as the vehicle for taking care of the estate. Depending on the facts and circumstances of the estate and the legal heirs, these can be difficult to create and to use, assuming they can be used at all, but they can sometimes still be the best solution. Basically the affidavit will list all the assets and liabilities of the estate, all the known heirs must sign the affidavit, and two disinterested witnesses who know enough about the decedent’s history must also sign the affidavit. If the court is satisfied that all the criteria are met, then he/she will sign the order accepting the affidavit as legally valid. With this signed court order and the affidavit the estate’s liabilities can be paid and its assets distributed.

If a small estate affidavit cannot be used for whatever reason, then there is still the possibility of having an independent administration. This can possibly be done if all the heirs of the estate agree to an independent administration while also agreeing on who should serve as the administrator of the estate. If these things can happen along with meeting some other criteria, then the judge must still decide that an independent administration is in the best interest of the estate. For example, if a minor child is an heir to the estate, oftentimes the court will not grant an independent administration for the sake of making sure the child’s interest is fully protected.

If the heirs cannot agree on things or if the court finds that an independent administration is not in the best interest of the estate for whatever reason, then a dependent administration must be used. Basically this means the court must closely supervise the administration details. Every action to pay any bills or sell or distribute any assets must be fully approved by the court, and periodic accountings must be prepared in order to give the court a status of the estate. Because of all the additional court oversight, dependent administrations generally take more time and require more attorney’s fees. If there are several creditors, complex assets, and/or bickering heirs, then the time and expense sometimes goes up tremendously.