Probate is a process by which an administrator (personal representative or executor) of an estate (the decedent’s property) distributes the estate’s assets to the decedent’s beneficiaries. In Texas, probate is handled by the Texas State Probate Office.  People often ask for the probating definition when trying to learn more about the process.

Steps to probate a will

  • Petitioning the Court
  • Appointing an Executor or Administrator
  • Inventorying and Appraising Assets
  • Paying Debts and Taxes
  • Distributing Assets to Beneficiaries

What does probate process mean

Probate definition: Probate is the legal process of validating a deceased person’s will and administering their estate. Each state writes its probate law, so it varies by state.  It includes identifying and inventorying the decedent’s assets, paying their debts, taxes, and final expenses, and distributing the remaining assets to their designated beneficiaries. When someone passes away, the probate court must step in to ensure that their wishes are properly carried out. This includes validating the will, appointing a personal representative (or executor), and making sure that all creditors are paid from the deceased’s assets. During probate, a personal representative — either appointed by the court or named in the will — (also called an executor) carries out these duties and oversees the entire process.

How does the probate process begin

The probate process begins with filing a petition to a court in the same jurisdiction as where the decedent resided when they passed away. Probate varies from state to state and it is crucial to find the correct probate court as soon as possible. From there, court-appointed individuals are assigned to carry out certain tasks related to settling an estate, such as notifying creditors of the death and searching for any missing heirs. If a will exists, it must be submitted to the court for review and validation before any other steps can be taken. This includes proving that it was executed properly according to applicable state laws. The executor must then take an inventory of all of the decedent’s assets — such as real estate, investments, bank accounts, and other property — so that they can be distributed according to the will or state law if there is no will.

During this time, creditors are also notified about the death so that outstanding debts can be paid from estate funds before any distributions are made to beneficiaries. After all of the estate debts have been taken care of and all relevant taxes paid (such as federal estate tax), the remaining assets may be distributed according to instructions outlined in a valid will or state law if there is no will or if portions of it were found invalid. Finally, after all of the distributions have been made and verified by representatives of both parties involved (such as beneficiary attorneys), then probate is officially closed by way of a court order known as “discharge” or “dismissal.”

Where should probate be filed?

In Texas, probate is typically filed in the county where the deceased resided at the time of their death. Probate proceedings must be initiated within four years of the date of death. To file for probate, a petition must be submitted to the court along with supporting documents such as a copy of the decedent’s will and/or valid identification. Once accepted by the court, an executor or personal representative is appointed to initiate and oversee the estate administration process. The executor is responsible for identifying heirs, collecting assets, paying creditors and taxes, preparing inventory and accountings, distributing assets according to law, and managing estate finances throughout probate.

How much does probate process cost

The average estimated cost of a probate process varies depending on the size and complexity of the estate, as well as the jurisdiction in which it is being probated. In Dallas County Texas, the estimated costs for an average middle-income person’s estate would likely be around $4,000 – $6,000. This includes court filing fees of up to $500 and attorney’s fees that typically range from 1-4% of the total estate value. Additional costs may also include accounting services, appraisals for certain assets, publication costs to notify creditors, executor commissions, and litigation expenses if any disputes arise during the process.

For estates larger than $25k in total value in Texas, there are several additional expenses such as independent appraisal fees and other administrative items that could add several hundred dollars to the total cost. Similarly, if certain laws or codes must be applied to manage a specific item within the estate like real property or a business interest these can also add extra fees.

Who can start probate process

The probate process can be started by the appointed executor of the deceased person’s will or by an interested party, such as a beneficiary of the estate. In some cases, the court may appoint someone to act as an administrator if no executor is named in the will or if there’s no valid will. In most jurisdictions, it is common for a lawyer to help with the probate process, as there can be complex legal issues that need to be addressed to ensure that all steps are properly taken and followed. The executor or administrator must file an official petition with the court to start the process. This petition typically includes details about who is involved in administering the estate, information about any assets owned by the deceased person (such as bank accounts and real property), and a summary of any applicable debts that must be paid by the estate. After filing this petition, a notice of probate must be given to all interested parties (such as creditors and beneficiaries) so that they have a chance to respond or present claims against the estate. Once all these steps are completed, then an inventory of assets must be made and any applicable taxes computed. After the debts have been paid off and taxes settled, then distributions can begin according to instructions outlined in a valid will or according to state law if there is no will or if portions of it were found invalid. Finally, after all the distributions have been made and verified by representatives of both parties involved (such as beneficiary attorneys), then probate is officially closed by way of a court order known as “discharge” or “dismissal.”

Who can be chosen as the executor?

An executor is a person appointed to collect and distribute assets, pay debts and taxes, and carry out the instructions outlined in the deceased’s will. The executor is most commonly chosen by the deceased in their will; however, if there is no will, the court assigns an administrator to handle these responsibilities.

When choosing an executor during estate planning make sure to pick someone trustworthy and reliable who can undertake all of the tasks that are associated with settling an estate.

This person should be organized, have financial knowledge, and exhibit good judgment. In some cases, they may need to hire professionals such as lawyers or accountants to assist them with certain tasks.

In addition to complying with the wishes of the deceased, an executor must also abide by laws and regulations related to probate. An executor has a fiduciary duty to act in good faith when managing the assets of an estate for the benefit of its beneficiaries. This includes taking necessary steps for timely filing tax returns and paying any outstanding bills or creditors that are owed money from the estate.

The executor is tasked with ensuring that all legal requirements are met while settling the estate according to its terms.

Professional Executor Service

When it comes to appointing an executor to manage the probate process, some people may opt to hire a professional executor service. Professional executors are experienced and knowledgeable in estate law and can provide valuable advice during the process. They understand the complexities of estate administration, have access to resources that may be needed, and can help manage tasks that would otherwise take up a lot of time for family members or friends who volunteer for the role.

Hiring a professional executor is especially beneficial in cases where there is a complicated will or multiple beneficiaries with conflicting interests. Professional executors are well-equipped to identify potential issues and handle them accordingly. Additionally, they’re able to draw on their experience and expertise to ensure that the probate process runs as smoothly as possible and that all deadlines are met.

In addition to providing valuable guidance throughout the probate process, professional executors can also be invaluable when it comes to filing taxes and dealing with creditors. They’re aware of all of the necessary paperwork required and know exactly how to approach difficult situations when dealing with creditors or financial institutions. This can save time and money while ensuring that everything is done properly according to legal requirements

Professional executors also bring objectivity into the equation since they have no personal stake in how assets are distributed or managed. They’re able to remain impartial throughout the entire process which makes them ideal for cases with complex estates or contentious beneficiaries.

Overall, professional executors offer many advantages over traditional methods of settling an estate through family members or friends. Their experience and knowledge make them invaluable when it comes to navigating through the complexities of probate law while ensuring that all deadlines are met and obligations are fulfilled according to legal requirements.

Probate process timeline

The probate process typically takes anywhere from six months to two years depending on the complexity of the estate. During this time, the court will oversee a variety of tasks, such as locating and protecting assets, paying taxes and creditors, and distributing assets to heirs according to the will or state law.

The first step in probate is typically a petition filed by an executor with the probate court. This petition is used to start the process of settling an estate. The executor must provide information about themselves as well as details about the deceased’s assets and debts.

Once the petition has been approved by the court, it’s then up to the executor to manage all aspects of settling the estate. This includes notifying creditors and potential heirs, inventorying assets, gathering documents, filing taxes, paying debts, and distributing assets.

Can you speed up the probate process?

One of the most effective strategies to expedite the process is to use technology, such as online filing systems and digital tools to easily track documents, communicate with parties involved, and keep up with deadlines. Additionally, professional executors can guide the most efficient way to proceed and help streamline the process.

The executor should take advantage of any available resources such as probate attorneys, financial advisors, and other experts who can offer assistance, as well as prioritize tasks according to importance. Strong organization skills and consistent follow-up efforts will ensure that all of the necessary steps are taken promptly.

Types of Probate Proceedings in Texas:

In general, there are two types of probate:

formal probate of will: A structured and supervised process that is used for complex or contested estates. During formal probate, the court will oversee the process, including the appointment of an executor or administrator, asset valuation, distribution of assets, and resolution of any disputes.

informal probate of will:

A simpler process that is used for straightforward estates with little conflict among heirs or beneficiaries. During informal probate, the court will still oversee the process to ensure compliance with state laws, but it will generally be more hands-off than in formal probate.

When you petition for probate in Texas, the four specific types of proceedings regarding a decedent with a will are independent administration, dependent administration, muniment of title, and small estate affidavits.

Independent administration

This is the most common type of probate proceeding in Texas. It allows the executor or administrator of the estate to handle most matters without court supervision.

To speed up the process, one can utilize technology such as online filing systems and other digital tools as well as enlist professional help from executors or attorneys who can guide how best to proceed. After an independent executor or administrator is approved and an inventory of estate assets (or an “affidavit in lieu of an inventory”) has been filed, the executor or administrator can take care of the administration of the estate without further court involvement or supervision.

The independent executor or administrator can settle with creditors, set aside the homestead and other exempt property, manage the property of the estate, sell assets for payment of debts or taxes, and distribute the remaining estate to those entitled to it. Thus, independent administration avoids the costs and delays associated with a court-supervised estate administration in which the executor or administrator must seek court approval before doing any of these acts. As mentioned above, courts often require that all heirs-at-law agree to an independent administration before an independent administration is permitted.

Dependent administration

Dependent administration of probate is used when court supervision is necessary, such as when there are disputes among heirs or when the executor or administrator is not able to manage the estate effectively. This form of probate requires that all parties involved agree to the terms of distribution before any assets can be transferred. The court needs to be involved in the estate planning process to ensure that all legal requirements are met and that all parties receive their fair share of assets. This may include instances where the deceased has left a will with unclear instructions, or if there are multiple creditors, beneficiaries, or heirs that disagree on how the assets should be divided. Dependent administration may also be needed if there are disputes between surviving family members regarding asset ownership or if an executor needs to be replaced due to incompetence or incapacity.

In addition, dependent administration can be used if there are issues concerning the validity of a will, such as a forgery or undue influence. Finally, dependent administration may also be necessary when there is suspicion of fraud or mismanagement of funds by either the decedent or their executor.

Muniment of title

This is a simplified probate proceeding used when the only issue is transferring title to assets, such as real estate. Muniment of title allows a party to assert their right to an estate without going through formal probate proceedings and can be used when the deceased left no will and all parties agree on how assets should be divided.

Small estate affidavits

This is a simplified probate proceeding used when the value of the estate is below a certain threshold; all parties agree on asset distribution and no court involvement is needed.

The probate process for intestate (no will):

For those who die without a will (intestate), Texas follows a set formula that determines how property will be distributed based on familial ties. The law gives you the freedom to make a Will that distributes your property how and to whom you see fit. If all surviving family members agree on how assets should be distributed, then small estate affidavits may be used instead of formal court proceedings to transfer ownership rights over certain items such as real estate and financial accounts. The law gives you the freedom to make a Will that distributes your property how and to whom you see fit. But if you die without a Will in Texas, a formula that does not take into account your wishes determines how your property will be distributed.

In Texas, there is a presumption that all property acquired during a marriage <>community property. Under Texas laws, if you are married and your spouse and children survive you, then:

  1. Your surviving spouse will inherit all your community property if all your children are also the children of your surviving spouse;
  2. Otherwise, all your one-half interest in the community estate will pass to your children, with your spouse keeping only his or her one-half interest.

If you do not have any children, then your surviving spouse will inherit all of your community property. If the deceased left behind no spouse, parents, children, or siblings, then the state of Texas will continue going down the family tree.  Check out this recently updated article by Rania Combs Law PLLC which explains the intestate succession process of the state of Texas.

Uniform Probate Code

UPC Probate

The Uniform Probate Code (UPC) is a set of laws that regulate probate administration in the United States. It was first created in 1969 by the National Conference of Commissioners on Uniform State Laws (NCCUSL), and revised in 2019 to keep up with changes in state law.

While 18 states have adopted the entire code as of 2022, other states have only taken certain parts. The UPC provides consistency for attorneys, estate planners, and others who deal with estates across different states, while still allowing flexibility for each state’s unique inheritance laws. The code outlines three main forms of probate: independent administration, dependent administration, and muniment of title. However, it hasn’t necessarily made probate less complicated, and many people still try to avoid it. If you’re currently in the process of estate planning, it’s a good idea to check what parts of the UPC your state has adopted.

Uniform Probate Code States

As of 2022, based on an article by the #1 leading DIY probate & estate settlement platform, Atticus, these are the eighteen states that follow the UPC.

Alaska, Arizona, Colorado, Georgia, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, South Carolina, South Dakota, and Utah.

Probate vs. Non-Probate Assets

Knowing what assets are subject to probate and which ones are not is key to understanding how this process works. Probate assets are those that the law says need to go through a probate court before they can be given out. Non-probate assets are not part of the probate process and can be distributed without going through a court.

Probate Assets:

  • Real estate
  • Stocks, bonds, and mutual funds
  • Bank accounts held solely by the deceased individual
  • Collectibles such as art and jewelry

Non-Probate Assets:

  • Retirement accounts (IRA’s)
  • Payable on death bank accounts or brokerage accounts which are transferred to a designated beneficiary(s) upon the death of the owner.
  • Life insurance proceeds that are paid out to surviving beneficiaries if listed in a policy contract
  • Trust assets that pass to designated beneficiaries outside of probate