Texas Probate: Frequently Asked Questions

Our Houston Probate Attorneys Answer Your Questions

What Does It Mean to Probate a Will in Texas?

Texas Probate CourtProbate is the process of asking a court to issue an order decreeing that a deceased person’s Will is a valid Will. It also involves fulfilling the requirements of Texas law to pay the deceased person’s debts and to distribute the deceased person’s remaining assets to the beneficiaries named in the Will.

If the Deceased Person Signed a Will, Why Do I Have To Go To Court?

Most financial institutions and other entities holding the deceased person’s assets want assurances that the Will is valid. They do not want to give the deceased person’s assets to one beneficiary, only to have another person show them a different Will stating that they are the proper beneficiaries to receive the deceased person’s assets. An order from a court stating that a Will is valid gives the financial institutions and other entities comfort that they are transferring the assets to the right beneficiaries.

Is a Texas Probate Necessary if a Person Dies Without a Will?

Probate is not necessary if an asset or an account has a beneficiary designation associated with it. These accounts typically include IRA’s, 401(k)’s, life insurance, joint accounts with right of survivorship, or payable on death accounts. Also, probate would not be necessary if all of the deceased person’s assets were held in a revocable living trust. However, if the deceased person owned a financial account, real estate, or other asset that did not have a beneficiary designation, a form of probate will be necessary to transfer the assets and accounts to the deceased person’s heirs. This is usually more time consuming and expensive than going through probate with a Will because in most cases a court will appoint its own attorney (referred to as an attorney ad litem) to investigate the deceased person’s family background to make sure that all of the deceased person’s heirs are accounted for.

If deceased person has not left a Will, how do you know who the heirs are?

There are three sets of rules for determining heirs under Texas law. One set of rules applies to unmarried individuals, another applies to the separate property of a married individual, and another applies to a married person’s community property. [Those rules are set out in the Probate and Estate Administration section of Practice Areas on the Website – include a link?]

If a married person dies without a Will, isn’t the surviving spouse automatically the heir?

Not necessarily. Only in a limited number of cases is a surviving spouse the sole heir of a person who died without a Will. This can be a concern especially in blended families. If the surviving spouse is not the parent of the deceased spouse’s children, the deceased spouse’s community property passes to the deceased spouse’s children and not to the surviving spouse. Many surviving spouses are shocked to find that they own their home, for example, with their step children. The problem is compounded if the deceased spouse’s children are minors. In that case, it may be necessary to apply for a court appointed guardian of the minor to deal with the minor’s interest in the property. Conflicts can arise when the surviving spouse needs to deal with a stepchild’s other parent to manage the deceased spouse’s property.

What happens to a deceased person’s debts?

If a person died with debt, his or her estate is responsible for paying the debts. Usually an executor (if the deceased person had a Will), or an administrator appointed by the court, is responsible for identifying and paying valid debts before distributing the deceased person’s remaining property to the beneficiaries or heirs. Under some circumstances, certain property belonging to the deceased person may be exempt from paying the deceased person’s debts.

Are the heirs or beneficiaries responsible for the deceased person’s debts if there are insufficient assets in the estate to pay the debts?

No. Only assets in the deceased person’s estate are responsible for the deceased person’s debts.

What is an executor?

This is the person named in your Will who has the responsibility of identifying what property you own, paying your debts and final expenses, filing final tax returns, and distributing the remaining assets to your beneficiaries. The executor also has to comply with court notice and reporting requirements. After these tasks have been accomplished, the executor’s job is finished.

What does a Texas probate court require the executor to do?

An executor is required to publish in a newspaper a notice to the deceased person’s possible creditors (even if no creditors are known to exist), give notice to the Will’s beneficiaries that the Will has been probated, and give specific notice to those creditors who have a security interest, such as a mortgage, in any of the deceased person’s assets. The executor is also responsible for preparing an inventory of the estate’s assets which, in most cases, is filed with the court. [For more information on what is involved in a typical “simple” Texas probate, click link to Probate and Estate Administration section of Practice Areas on the Website?]

What are Letters Testamentary?

Letters Testamentary is the name of the document issued by the court as proof of an executor’s power to deal with a deceased person’s assets. Like death certificates, you can order multiple original copies of Letters Testamentary. Chances are that one will be needed for each asset transfer. Financial institutions, title companies, and other entities in charge of changing ownership of a deceased person’s assets will require an executor to give them Letters Testamentary before transferring title to the deceased person’s beneficiaries.

Do Letters Testamentary have an expiration date?

While Letters Testamentary do not officially “expire” after a certain date, many institutions will require the Letters Testamentary to be dated within 60 days of a transfer. This is to assure the institution that the executor has not been removed by the court before the request to transfer the assets. To comply with the institution’s request, sometimes an executor will need to order from the county clerk additional Letters Testamentary with a later date than the date the Will was probated and the executor qualified to act.

What is the difference between an executor and a trustee?

A trustee manages a trust. The trust could be one created in a Will. As opposed to an executor, the role of trustee could be a long term position, depending on how long the trust is supposed to last. The executor and trustee could be the same person with different roles. The trustee should take care of the property in the trust and invest as a prudent person would, in addition to making distributions to the beneficiaries as the terms of the trust direct.

What is a Muniment of Title?

A muniment of title is a streamlined way to probate a Will. A Will may be probated as a muniment of title if the deceased person died without any debt, other than a debt secured by real estate, and there is no need for an executor to manage the assets of the estate. If a muniment of title is appropriate, the court will issue an order stating that the deceased person’s assets should be distributed directly to the beneficiaries named in the Will. The beneficiaries would use the court order as proof that they are entitled to receive the deceased person’s assets.

What is a Small Estate Affidavit in Texas probate?

If a person dies without a Will, and the deceased person’s assets, not counting the deceased person’s homestead, is worth $75,000 or less, a small estate affidavit may be filed with the court. The small estate affidavit should include information relating to the deceased person’s family history and identify the deceased person’s heirs. It should also list the deceased person’s assets, their values, and the deceased person’s debts. The small estate affidavit will not work if the estate is insolvent. The small estate affidavit must include the notarized signature of two disinterested witnesses who have knowledge of the deceased person’s family history and the notarized signatures of the deceased person’s heirs. The affidavit is then submitted to the court for its approval. The court’s order approving the small estate affidavit is proof of the heirs entitled to receive the deceased person’s assets.

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