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What happens to my parents’ estate if they pass away with debts?

On Behalf of | Nov 29, 2016 | Probate & Estate Administration |

As you cope and come to terms with the death of a parent, you may have many questions running through your mind about what will happen to their property. Any property and belongings they leave behind is called their estate. The process in which you might distribute or sell their property, pay any unpaid bills and pay their debts is called probate.

If you have been listed as your parent’s executor, you are the person responsible for taking care of their assets and probate after their death. With the help of an experienced probate attorney, you can determine what steps to take to figure out what will happen to your parent’s estate after their passing.

In community property states like Texas, any debts incurred during the marriage, including credit card debt, is transferred to the living spouse. If both spouses have died, this does not apply. A probate lawyer can help you figure out how to determine how much debt your parent has, and what must be paid after death through the value of their estate. Sometimes, if the estate is not enough to cover all of the debt, creditors are out of luck.

Texas requires an estate to be administered, in which property or belongings are sold, in order to cover debts to creditors after a death. There are two kinds of estate administration: dependent administration, and independent administration.

What is the difference between dependent administration and independent administration?

Dependent administration is the process in which an estate is administered when court oversight is required. Dependent administrators have to get permission from the court before selling or transferring property or paying debts. A probate attorney would draft legal documents for the probate judge to hear each action. Dependent administration typically happens when beneficiaries cannot agree on a decision or are not getting along.

Dependent administration can take up to a year, if not longer. It is the more complicated of the two, but sometimes necessary.

Independent administration allows you to sell assets, transfer property and pay debts on behalf of your parent after their passing without court oversight. However, Texas probate courts generally still require you to retain an attorney for the probate process. Independent administration is more affordable and takes less time than dependent administration.

How can I tell which type of administration applies?

Under Texas probate law, independent administration is allowed when that is designated in your parent’s will. If not, you can still go the independent administration route if all the beneficiaries give their written consent to the probate court.

The time after your parent’s death can be a confusing, emotional and challenging time. Dealing with the legal aspects of probate can feel less overwhelming if you consult with an attorney skilled and experienced in probate and probate litigation. You don’t have to figure it out alone, especially during a time of grief. Let an attorney handle the paperwork and the courts, while you focus on your parent’s legacy and memories.