In this article, you will learn…
- The basic steps to the probate process,
- When an estate can be probated without a will, and
- Some ways to avoid probate in Texas.
What Is The Step By Step Guide Through The Probate Process In Texas?
There are several steps to the probate process in Texas. A high-level overview of this process will include…
- File the application for either probating a will or determining heirship,
- Attend the hearing where an executor or administrator is appointed by the court,
- Publish a notice in the newspaper to allow anyone to come forward and make a claim against the estate,
- Send a certified mail notice to an secured creditor,
- Send a notice or get a waiver for everyone who is a beneficiary or an heir,
- Wait four months to see if anyone comes forward to make a claim against the estate,
- File an inventory of the estate, and
- Determine the value of the estate.
Your attorney will handle the publishing and sending of notices to the appropriate parties, as well as helping with any parties who come forward to make a claim against the estate for monies owed to them by the deceased.
The inventory of the estate will show what the estate owned at the moment the person passed away. It will say how much of that property is their separate property, property they had before marriage, or property received during the lifetime, or community property, and the value the estate has in those funds.
Once all of these steps have been taken, then the distribution of the estate can begin.
Can An Estate Be Probated In Texas Without A Will?
Yes, an estate can be probated without a will in Texas. Texas law essentially creates a will for you whether you like it or not, so you will have a will even if you don’t dictate your own will prior to death. If you don’t have a will that you’ve voiced what you want to happen to your assets, the state of Texas has an answer. You probably won’t be really happy with what the state of Texas determines, though.
Is An Attorney Required To Probate An Estate In Texas? And What Complications Can Be Avoided By Hiring An Experienced Woodlands Texas Probate Attorney?
While an individual could legally represent themselves in probate, it isn’t recommended that one does so without an experienced probate attorney. By law, the individual who files a probate has to have an interest in the estate, so they also have the right to collect something from the estate. So, legally, you could absolutely represent yourself in probate.
However, many complications can arise when an individual chooses to represent themselves in probate. There are many rules regarding finding disinterested witnesses, publishing something in the newspaper, and others which most people would have on idea about. Most people wouldn’t know where to even look for the laws and rules surrounding probate, or know the difference between probating a will or determining heirship.
To ensure the smoothest process of probate and the best possible outcome, it’s important to have an experienced Texas probate attorney on your side.
When Is Probating A Will In Texas Not Necessary?
There are two most common ways under which you don’t have to probate a will in Texas:
If the deceased person has placed all of their assets in one or more trusts, nothing changes about the ownership of those assets just because they died.
The trust doesn’t lose control or ownership of assets just because the trustee dies. Assets held in trust transfer to the new trustee upon the death of the owner of the trust. The new trustee can then distribute everything in the trust according to the trust document.
If all assets, including real estate, are in a trust, you don’t need to probate a will. You don’t need a court order to distribute assets in a trust because there is already a trustee appointed who will assume control of the trust upon death. That new trustee then has full authority to sell assets, hold assets, or distribute assets to the heirs and beneficiaries.
- Ladybird Deeds
A ladybird deed is designed and intended to immediately transfer ownership of real estate once the person passes away.
In Texas, our house is community property where I own half and my wife owns half. A ladybird deed allows me to give my wife my half of the house for $10 and my wife’s love and affection. I give her my half of our house but I saw that I reserve the right to live in my half of the house for as long as I want to. I reserve the right to move out and rent my half of the house to anyone I want, whether she likes it or not, and I reserve the right to sell my half of the house to someone without her permission. If I don’t do any of those things, though, when I die, my wife becomes the sole owner of the house.
The great thing about this is that the ladybird deed becomes a legal document, determinate future title to a piece of real estate, and Texas law recognizes this and has even written law saying that this is not a probate transaction. The lady bird deed passes outside of probate. Thus, a ladybird deed allows you to avoid probate. The house passes automatically to my wife upon my death. And, because she also has a ladybird deed, the house will pass automatically to me should she pass first.
The ladybird deed essentially says I’m giving my wife full title right now, while also explicitly saying that I’m actually not, because I’m reserving all of these other rights to live there, to rent it, and to sell it. You can also use the lady bird deed to give your property to your children in the same way.
The ladybird deed is quick, easy, and cheap. I actually lose money by recommending it to my clients because, otherwise, I’m going to get a $4,000-$10,0000 fee for a contested probate. I still highly recommend it.
What you have to do if you have a will and you file probate is file the will. When you file the original will, it becomes a matter of public record. Your next door neighbor can go online and look to see what your dad left to you in his will. That should be nobody’s business but you and your dad’s.
With the lady bird deed, whoever is named executor in the will just picks it up and has a fiduciary duty. The fiduciary is one of the highest duties recognized in the law to act only according to what the will says. They can’t decide to switch anything around. Beneficiaries can agree to trade assets, but they can’t act in their best interest if it isn’t what’s in the will.
For more information on Timeline Of Probate Process In Texas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (281) 843-9723 today.