Probate is the legal process of administering the estate of a deceased person by resolving all claims and disbursing that person’s property under a VALID will.
An Estate is the net worth of an individual at any point in time. It is the sum of a one’s assets – legal rights, interests and entitlements to property of any kind – less all liabilities at that time.
When someone dies and leaves a will (Testate Administration), the Probate Process is as follows:
– Once the application has been filed, Texas law requires a 2 week waiting period before a hearing can be held on the probate application.
– During the 2 week waiting period the County Clerk posts notice at the courthouse that an application for probate has been filed. The posting serves as notice to anyone who may have an interest in the estate.
– Most often, the executor will then open up a bank account and obtain a Tax ID.
– The executor will then have the obligation of identifying and collecting the estate’s assets, paying the debts of the estate, paying taxes and collecting debts owed the estate.
– This is why your mailbox gets filled with unwanted “SPAM” mail and casual “stop bys” from investors looking to buy the home.
– At this point, the executor can put any real property up for sale.
– If this is a taxable estate, within 9 months from the date of death any necessary tax returns should be filed.
– Under Texas law, when the decedent died without a will, the default rule requires a Dependent Intestate Administration. In a Dependent Intestate Administration an administrator is appointed instead of an executor. The administrator is required to seek Court approval for each step of the probate process. Because of the additional procedures and complexity involved with a Dependent Intestate Administration it has higher administrative and legal costs.
– An alternative to a Dependent Intestate Administration when a decedent dies without a will is to create an Independent Intestate Administration. If all of the heirs of an estate agree, the Court can appoint an independent administrator. Similarly to independent executors that are appointed in a will, an independent administrator appointed by the Court has minimal court supervision.
– It is also sometimes used when the only assets that need to be distributed to the heirs are real estate.
– When probating a will as a Muniment of Title, the will is recognized as valid, but no executor or administrator is appointed. Once the Court approves the will and signs an order, the will and order can be used similarly to a deed and may be used to transfer real property to the heirs.
Thank you to Jeff Mentlewski, attorney with Mentlewski Paranjpe Law Group, PLLC, for summarizing probate and its process.