This page will explain a little more about the probate process.
What does “probate” mean?
Probate is the process by which a court appoints an executor to carry out the instructions in someone’s will.
How does having a will affect the probate process?
Having a valid will makes a big difference, and it will make the probate process much easier. One way to think of it is that having a valid will puts your estate into the express lane at the courthouse.
If someone dies in Texas leaving a valid will, his or her estate qualifies for “independent administration.” The court will admit the will to probate and appoint an executor for that person’s estate. The executor is given letters testamentary which allow him or her to handle the decedent’s property and carry out the instructions in the will. After the executor is appointed, he or she must provide notice to beneficiaries and creditors and file an inventory with the court. That’s usually all the court involvement. As legal matters go, it’s a very quick and painless process.
What if there is no will?
Without a will, the process is a little more complicated. If the decedent left property that needs to be transferred, then the court may appoint an administrator for the estate. One way an administration is different is that the court must first determine who the decedent’s heirs are, and, to do this, the court will appoint an attorney ad litem to search for any missing heirs. In other ways, an administrator’s duties are similar to an executor’s – he or she must also serve notice and file and inventory, for example.
Are there other ways to handle a decedent’s estate?
Yes, there are other procedures that may be appropriate in some cases. For example, a will may be admitted as a muniment of title, which allows the will to be recorded in the real property records just as a deed would be but otherwise does not admit the will to probate. Also, if the decedent did not have a will and left less than $50,000 in assets, his assets may be eligible to be transferred through a small estate affidavit.
Do I need an attorney for this?
Absolutely. Regardless of what procedure is appropriate for your loved one’s estate, handling the legal issues related to any estate is not something you should try to do on your own. Please consult with a qualified attorney before taking any steps to handle your loved one’s estate. We would be happy to discuss your loved one’s estate with you and help you decide what the next step is.
I've been told that I should "avoid probate."
Is this true?
Usually, no. As discussed above, the probate process in Texas is relatively straightforward, particularly for estates with a valid will. While, in some states with a more complicated probate process, avoiding probate may make sense, in Texas, it usually creates more expense and aggravation than it's worth.