Probate

Last updated on February 14, 2024

Probate is the legal process by which a person’s estate is settled after they die. In Texas, probate is handled by the county or probate court where the decedent lived at the time of their death. The process can take several months to several years to complete, depending on the complexity of the estate and any legal issues that arise.

When a person dies, their assets are typically held in their name, whether it be real estate, bank accounts, or personal property. Without a proper estate plan, these assets may have to go through probate before they can be distributed to their beneficiaries or heirs. Probate is the legal process ensuring that a decedent’s assets are properly identified, their debts are paid, and their remaining assets are distributed to their beneficiaries according to their will or, if there is no will, to their heirs according to the laws of intestate succession as described in the Texas Estates Code.

The available probate proceedings and alternatives to probate include:

• Probate of a will
• Judicial determination of heirship
• Independent administration
• Dependent administration
• Small estate affidavits
• Affidavits of heirship

The answers to two questions will determine which probate proceedings or alternatives to probate are appropriate for a given estate. First, did the decedent have a valid will? And second, is there a need for an administration of the decedent’s estate.

1. Did The Decedent Have A Valid Will?

A) The decedent died with a valid will.

A person who dies leaving a valid will is said to have died “testate.” In cases of testate decedents, it is necessary to apply to have their will admitted to probate.

The primary function of a will is to control the distribution of assets after the death of the person making the will. In a well-drafted will, therefore, the identity of the beneficiaries who are entitled to receive the decedent’s assets are not in question; rather, they are clearly described within the four corners of the will document. A will does not become effective, however, until an appropriate legal authority signs an order admitting the will to probate after the death of the decedent. In Texas, this legal authority is ordinarily the county court, county court at law, or probate court in the county in which the decedent resided at the time of their death.

Prior to admitting the will to probate, however, the court must make a determination as to the validity of the will; specifically, that it conforms to the requirements outlined in the Texas Estates Code. When someone refers to the “probate of a will,” they are referring to the legal process of having the will validated by a court of law so that the assets of the estate can be distributed to the beneficiaries named in the will.

A will admitted to probate without having an executor or administrator appointed for the estate is referred to as a muniment of title and is usually only appropriate in small, simple estates where the decedent did not have any debt or out-of-state assets. A muniment of title can be used in limited circumstances to transfer property owned by the decedent to the beneficiaries named in the will.

B) The decedent died without a valid will.

A person who dies without a valid will is said to have died “intestate.”

With no valid will to direct how the decedent’s assets should be distributed, the laws of intestate succession take over. In Texas, the persons entitled to receive the decedent’s property are called “heirs,” and the rules governing heirs are provided in the Texas Estates Code. The determination of a decedent’s heirs and the shares of the estate to which they are entitled is the primary function of a judicial determination of heirship.

A judicial proceeding to determine heirship requires the production of evidence regarding the decedent’s family history and the identity of his or her heirs. This proceeding is significantly more complicated and time-consuming than the probate of a will, where the persons entitled to receive the decedent’s property are clearly spelled out on the document being probated.

The result of a judicial determination of heirship proceeding is the issuance of a document called a judgment declaring heirship identifying the decedent’s heirs and the shares of the estate which each is entitled to receive. Like a muniment of title, a judgment declaring heirship can be used to transfer a decedent’s property to their heirs when estate administration is unnecessary.

In small, uncomplicated estates of intestate decedents, there are two alternatives to a judicial determination of heirship that may be appropriate in some circumstances: a small estate affidavit and an affidavit of heirship.

For estates with assets worth less than $75,000, a simplified probate proceeding known as a small estate affidavit can be used to obtain a court order similar to a judgment declaring heirship. Like a judgment declaring heirship, this order can be used to transfer a decedent’s property to the estate’s intestate heirs, but with the added benefit of not having to go through the full probate process. A small estate affidavit is a relatively simple probate procedure and is often attempted without the assistance of an attorney.

In some instances, it may be unnecessary to go to probate court at all. For intestate estates consisting solely of real, for example, an affidavit of heirship may be recorded in the county deed records to transfer the property to the decedent’s heirs.

2. Is There A Need For An Administration Of The Decedent’s Estate?

If no administration of an estate is necessary, then obtaining a court order admitting a will to probate as a muniment of title in a testate estate or a judicial determination of heirship in an intestate estate should be sufficient to transfer the decedent’s property to a decedent’s beneficiaries or heirs. In most cases, however, an additional step will be necessary: the appointment of an executor or administrator to administer the decedent’s estate.

In Texas, administration of an estate may be necessary when any of the following situations are present:

• There are outstanding debts or taxes owed by the estate that need to be paid.
• The estate has assets that require legal authority to transfer, sell, or distribute, such as real property or financial accounts without a designated beneficiary.
• To manage the affairs of an estate during the pendency of a will contest or other probate dispute.
• The decedent’s estate has ongoing business interests that need to be managed or settled.

If administration is needed, then the application to probate a testate decedent’s will or application to determine an intestate decedent’s heirs will also include a request to appoint an executor or administrator. Depending on the circumstances of the case, an administration can be independent, with minimal court oversight, or dependent, in which court approval is required to sell property, pay debts, or distribute assets from the estate.

It is important to work with an experienced probate attorney to ensure that the estate is properly managed and that the executor or administrator fulfills their duties and obligations.

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