When a loved one dies, they typically leave behind a will. A will is a legal document that contains instructions for managing the testator’s estate after their death. That said, a testator is a person who makes the will. Whether or not a testator created a will, chances are that the will is going to go through the probate process. Probate refers to a court case that deals with the following tasks:
- Collecting the decedent’s assets
- Paying the debts and claims against the estate
- Paying estate taxes, if any
- Determining heirs if the decedent died without a will
- Distributing the remainder of the estate to those entitled to it
One of the main purposes of probate is to establish the validity of a will and legally administer the will. Given the complexities, deadlines, and paperwork in the probate process, it’s important to hire a lawyer for help along the way. As such, turn to our Amarillo probate lawyer for all your legal needs during this challenging time in your life. We understand that mourning the loss of your loved one is a heavy burden to bear as it is, and probating a will could only make matters worse, especially if you’re unfamiliar with the process.
For these reasons and more, it is in your best interests to retain the Law Office of Laura E. Copp to help you meet deadlines, avoid mistakes and delays, settle disputes among family members, and more. To schedule your consultation and get started, contact us at (806) 424-4330!
How Do You Avoid Probate in Texas?
Given the gravity and nature of the probate process, it is no surprise that personal representatives (the people responsible for managing the estate) often look for ways to avoid the probate process. Simply put, you can avoid the probate process under limited circumstances. Assets that can be transferred to the new owner without probate, also known as “non-probate assets,” include:
- Joint accounts with rights of survivorship
- Assets with designated beneficiaries, including retirement accounts, IRAs, and life insurance policies
- Assets owned with a pay-on-death (P.O.D.) designation
- Assets owned with a transfer-on-death (T.O.D.) designation
- Real property owned as Tenants by the Entirety
- Assets owned by the Trustee of a Decedent’s Revocable Trust
How Long Does Probate Take with a Will?
It depends on the size of the estate. The probate process in Texas can be completed in 6 months for simpler estates, although, if a decedent died without a will or the will is contested (disputed), the probate process can easily last over one year.
How Long Do You Have to Probate a Will?
In Texas, executors have up to 4 years from the date of a decedent’s death to probate a will. If a will is not probated within 4 years, the estate will be handled as if the decedent died without a will.
What Does the Probate Process Look Like in Texas?
The probate process depends on the size of the estate, whether or not a decedent left a will, contests over the will, and more. Despite these factors, the probate process generally goes as follows:
Hiring: Retaining a lawyer is the first and foremost step you should take in the probate process. When you do, they can help you file paperwork accurately, handle creditors, resolve disputes, take inventory of the decedent’s assets, meet deadlines, and much more.
Filing: Next, you will file a probate application with the jurisdiction in which the decedent resided.
Posting: The County Clerk will post a notice at the courthouse informing the public about the probate application to allow anyone who contests the will or the estate administration to step forward. If no issues arise, then the probate process continues.
Validating: Once two weeks have passed since the probate application was filed, a court hearing will be scheduled to legally recognize the decedent’s death, verify the validity of a will, or appoint an administrator if there was no will. The executor will also be verified at this hearing.
Cataloging: One of the most tedious and demanding steps in the probate process is documenting and reporting all the decedent’s assets within 90 days. The executor or administrator will need to make an inventory of all the estate properties, an Appraisement, and a List of Claims as accurately as possible.
Identifying: Next, beneficiaries of the estate must be notified about the estate if the decedent died with a valid will. If there is not a will, however, then the probate court must determine heirship. Heirs who are interested in the estate must file an application with the probate court and may be required to testify that their application is truthful and accurate.
Notifying: It is common for a loved one to have debts when they die, such as medical bills and mortgages. As such, administrators or executors of the estate must notify creditors about the decedent’s death to allow them to file claims against the estate.
Resolving: Any family members or other potential beneficiaries who raise disputes over a decedent’s will must settle their differences in probate court. Anyone who wants to contest a will has 2 years after the initial probate to do so, making it imperative for a probate attorney to help resolve issues in this process.
Transferring: Lastly, assets are distributed to the beneficiaries once all the debts and disputes are resolved.
Keep in mind that this is a very general outline of the probate process in Texas. As we mentioned before, the probate process will look different depending on the size of the estate, the validity of the will, and any disputes that arise along the way. Regardless, retaining a probate lawyer is key to making the process and smooth as possible.
Common Probate Terms & Definitions
The probate process can be confusing for anyone, regardless of whether or not a decedent left a will behind. You will come across unfamiliar legal terms that you don’t know the meaning of, which can significantly complicate the probate process, especially if you don’t have an attorney. For these reasons, we define common terms you will encounter in the probate process below:
Administrator: A person, sometimes a family member, who is appointed by the court to administer the estate of a person who died without a will (i.e., a Personal Representative).
Administrator with will annexed: A person appointed by the court to administer the estate of a person who died with a will, but the will either fails to nominate an executor or the named executor is unable to serve.
Assets: All property (other than income) in an estate.
Beneficiary: The person or entity that receives property under a will, trust, or life insurance policy. Unless the estate is small, beneficiaries of a will only receive their benefits after the will is validated in the probate court.
Community property: Property acquired by a couple during their marriage, except gifts or inheritance.
Conservatee: A person who is unable to protect and manage their own personal care or financial affairs, or both, which then becomes the responsibility of the conservator.
Conservator: A person or organization appointed by the court to protect and manage the personal care or financial affairs, or both, of a conservatee.
Decedent: A person who has died.
Dependent: A person who is financially supported by another person, usually the parent.
Durable power of attorney: A written legal document that lets an individual designate another person to act on their behalf, even if they become disabled or incapacitated.
Executor: The person named in a will to carry out its directions. This person is the personal representative of the decedent’s estate.
Fiduciary: A person or organization that manages property for a person, with a legal responsibility involving a high standard of care (i.e., conservators, guardians, personal representatives, agents, or trustees)
Guardian: A person appointed by the court to protect and manage the personal care or financial affairs, or both, of a minor (ward).
Heir: A person who would naturally inherit property through a will, or from another who died without leaving a will.
Inter vivos trust: Also known as a “living trust,” this type of trust is set up during the lifetime of a person to distribute money or property to another person or organization and remains under the person’s control during the remainder of their life.
Intestate: Without a will.
Living will: Also known as a medical directive or advance directive, a living will is a written document that states a person’s wishes regarding life-support or other medical treatment in certain circumstances, usually when death is imminent.
Personal property: All items, both tangible and intangible, that are not real property. This includes anything owned by a person that can be moved such as money, securities, jewelry, etc.
Power of attorney: A written legal document that gives an individual the authority to act for another.
Probate estate: All the assets owned at death that require some form of legal proceeding before title may be transferred to the proper heirs. This excludes non-probate assets (mentioned above).
Real property: Land and all the things attached to it.
Revocable living trust: A trust created during the maker’s lifetime that can be changed. Allows the creator to pass assets on to choose beneficiaries without going through probate.
Testate: A person who has made a will or who has died leaving a valid will (opposite of intestate).
Will: A legal document directing the disposal of the testator’s property after their death and remains revocable during their lifetime.
Will contest: A probate proceeding intended to clarify disputes concerning the construction or elements of a will, or whether or not a will exists.
Probate Is Made Easier with Our Lawyer on Your Side
As you can see, probate can be complicated and confusing. The process and impacts of probating a will are overwhelming, particularly, if you go at it alone. You don’t want to make mistakes in a process like this, as they can result in delays, complications, and other unintended consequences of probate. With our Amarillo probate attorney in your corner, you can rest assured that we will do the “heavy lifting” throughout the process so you can focus on grieving your loss and moving forward.
Let’s talk about your situation during a consultation. To schedule your appointment, contact us online or at (806) 424-4330!
Laura E. Copp Founding Attorney