Texas probate can be a stressful process. Hiring a knowledgeable Houston probate attorney who can guide you through the legalities of Texas probate law while bringing you peace of mind is crucial during this time of your life. Our probate attorneys can assist you in handling matters ranging from deceased estate planning, to routine probate matters, complex contested will situations, or probate litigation cases here in Texas. We have probate attorneys in Houston, San Antonio, and Edinburg Texas to help ease you through the Texas probate process. The first step in simplifying probate, is to actually understanding the process of Texas probate which we discuss further in this article.
Generally there are two ways an individual can pass. They can pass with a will or without without a will “intestate”. If you pass with a will in Texas, then the property of the estate is conveyed to the beneficiaries as instructed in the will. If you pass without a will in Texas, then the property is conveyed to the beneficiaries according to the intestate laws of Texas.
If an individual passes with a will then the estate is dispersed through the executor or executrix. This is the person that was appointed by the deceased in the will. Once a petition for probate is filed a hearing is set to officially appoint the executor or executrix and receive Letters of Testamentary. A Houston probate attorney from our firm can assist you with the ins and outs of handling intestate.
Letters of Testamentary gives authority to the Executor to do the following:
- Distributing assets according to the will.
- Maintaining property until the estate is settled (e.g., upkeep of a house)
- Paying bills for the estate.
- Paying taxes on the estate.
- Make court appearances for the estate.
If an individual passes without a will, then the estate is dispersed through the administrator of the estate. This is the person that is appointed by the court to administer the estate of the deceased. Once a petition for probate is filed an initial hearing is set to appoint the administrator. This is also an opportunity for anyone to contest the appointment of the administrator. Once an administrator is appointed by the court, another hearing is set to receive the Letters of Administration. After the Letters of Administration are received, then the Administrator has the power to act on behalf of the estate with similar powers as an executor mentioned above.
After the appointed party has received the power to act on behalf of the estate, the appointed party still has other obligations to complete the probate process in Texas. Depending on what type of probate process is conducted, there will be different steps to the process. A Houston probate attorney can guide you through any of these cumbersome processes. The following are steps required if you are an Executor or Administrator.
The appointed party has a set time period to provide notice to all creditors of the estate. Whether they live in Houston or not, the Texas Probate Code gives the appointed party one month from the time they receive the Letters Testamentary or Administration to publish a notice in the local Houston newspaper for the estate’s creditors.
Inventory of the Estate Assets
Inventory of the Estate Assets is a detailed listing of all of the assets of the Deceased as of the date of his or her death. This listing must be provided to the Court within 90 days after the Executor or Administrator is appointed. It informs the Court of those assets with which it should be concerned in the probate administration.
Once all Creditors are addressed and all remaining assets are dispersed, then the probate process is complete. Although the process of Texas probate may be easy to explain, there are many challenges that may arise throughout.
There are many obstacles that can prevent the Texas probate process from being completed. The following are some of the challenges that an Executor or Administrator may face when trying to probate the deceased estate:
- Probate Bond – A probate bond’s purpose is to protect heirs and creditors from being harmed by the negligence or wrongdoing of the administrator or executor. If the bond set by the court is too high it can pose a problem probating the estate.
- Contesting the Administrator – If a party does not agree that the person applying to be the administrator is suitable candidate, a party can contest the appointment of the administrator by the court. This poses obvious problems to complete the probate process.
- Contesting the Validity of the Will – If a party believes that the executed Will was either unauthentic or executed through coercion or distress, this can invalidate a Will and pose obvious challenges.
- Creditor Challenges – Probate is not just about assets but also about liabilities of the estate. The administrator or executor must give a notice to creditors. The creditor can challenge amounts owed to them and that can delay or even prevent the probate from being completed
- Disputes between heirs – This is one of the most common pitfalls of probate. It is not uncommon for families to have disputes amongst themselves. In cases where the heirs cannot agree, real property is sometimes court ordered to be sold and the proceeds be distributed among the heirs. There are also tenant issues for family members that occupy the property at the time the loved one passed. This can further complicate the Texas probate process and that’s why having a probate attorney on your side will ease any issues that arise.
- General probate litigation – With all these potential pitfalls and others not mentioned, it is not uncommon for the general legal process to take a toll on the Texas probate process. In some cases this is used to force parties to come to a settlement.
Any of theses challenges can prolong the probate process in Texas or even prevent the probate process from being finalized, so you should contact a probate attorney who can assist you with this process.
Transfer on Death Deed is a new tool here in Texas that can assist in avoiding the probate process to transfer real estate. Effective September 1, 2015, Texas Estate Code Section 114.151 allows for Transfer on Death Deeds. Lawmakers believe this provision will provide a simplified process for the non-probate transfer of real estate in Houston and the rest of Texas.
A Transfer on Death deed operates the same as any other conveyance, except that title does not pass to the grantee until the grantor’s death. The property conveyed passes outside of the grantor’s estate. To be effective, a Transfer on Death Deed must be signed, notarized, and recorded in the deed records of the county where the property is located prior to the death of the grantor. It may not be created through the use of a power of attorney. An unrecorded Transfer on Death Deed is ineffective to convey property in Texas.
The statute permits the naming of alternative beneficiaries in the Transfer on Death Deed; however, the statute does not permit a grantor to convey under complicated distribution provisions or to several people in varying percentages. If the grantor changes his or her mind, a Transfer on Death Deed may be revoked by the filing of a “Cancellation of Transfer on Death Deed” form or by the recording of a subsequently executed conveyance of the same property. A Transfer on Death Deed may not be revoked by a will. Contact a Houston probate attorney if you need someone to assist you with any of the nuances we’ve described here.
A Texas muniment of title is a procedure that is used to transfer real property from the beneficiaries named in the decedent’s will without the need for estate administration. Probating a will as a muniment of title in Texas is a procedure where a Decedent’s Will is filed for probate, the Court recognizes the Will, but does not appoint an executor or administrator to administer the Estate. Once the Court signs its Order establishing the Will as the Decedent’s true last Will, a certified copy of the Will and the Court’s Order can be used to transfer title in any property owned by the Decedent to the beneficiaries of the Will. The Will and the Order serve as an equivalent to a new deed. It is always best to have a deed prepared to ensure it is clear who the property should be conveyed to and avoid potential title issues once the property is sold again.
Probating a will as a muniment of title in Texas is best used in estates that are small, straightforward and when the decedent’s only asset was a house that now needs to be transferred to the beneficiaries. It is not advisable to probate the will as a muniment of title in Texas if the beneficiaries do not get along, or if there are significant assets in the estate. Texas muniment of title is a mechanism that is unique to Texas. This probate procedure should not be used in estates with assets that are held out of state of Texas. Most other state’s probate attorneys will not recognize this as a tool and may require the administration to be converted to an independent or dependent administration, which is why you should contact a probate attorney who can assist you with this process.
A Texas affidavit of heirship of the Texas probate code is a document or other instrument that declares or identifies the heirs of a deceased person. This document can then be used to transfer title from the decedent’s name into the names of the heirs without having to go through the Texas probate process. Texas heirship affidavits are much less expensive and quicker for title transfer to real property compared to a probate proceeding because they don’t require a court proceeding.
An affidavit of heirship in Texas for personal property is to be used in the cases where someone dies intestate, or without a will. The Texas affidavit of heirship can be used in its place provided there is no complexity to the estate with property being transferred without encumbrance to the identified heir. The affidavit of heirship of the Texas probate code is filed and recorded with the deed records in any county’s where the decedent owned real property or where the decedent last resided. Be sure to contact a Houston probate attorney who can assist you with this process.
To be effective, the Texas affidavit of heirship for personal property must be signed by a person with personal knowledge of the decedent’s family and marital history, a notary public, and two disinterested witnesses who know the deceased or the family but do not stand to gain financially. In the state of Texas, witnesses for an affidavit of heirship for personal property must specifically know the following:
- The decedent.
- The decedent’s date of death.
- Names of the family members and heirs.
- Whether there are outstanding debts at the time of death.
- They will not benefit financially from the estate themselves.
The Small Estate Affidavit is a probate method of transferring a decedent’s property without waiting for the appointment of a personal representative of the estate. A Small Estate Affidavit is only to be used when there is no will. This probate method is more cost effective and faster than a determination of heirship because Texas courts do not typically require a hearing for a Small Estate Affidavit. Unfortunately, this method is not as cost effective and more time consuming than a Texas affidavit of heirship because it will require the services of a probate attorney and a filing with the probate court, hence you should contact a probate attorney who can assist you with this process.
In order to qualify for a Small Estate Affidavit, the following requirements must be met by the estate:
- The estate assets must exceed the known liabilities of the estate;
- 30 days have to elapse since the date of the decedent’s death;
- no petition for the appointment of a personal representative is pending or has been granted;
- the value of the estate assets, excluding homestead and exempt property, does not exceed $50,000;
- a required affidavit is filed with the court;
- the judge approves the affidavit;
- The distributees comply with their requirements.
The required Affidavit filed with the court must meet the following requirements:
- be sworn to by two disinterested witnesses, each distributee of the estate who has legal capacity, and the natural guardian or next of kin of any minor distributee or the guardian of any other incapacitated distributee;
- show the existence that 30 days have to elapse since the date of the decedent’s death, no petition for the appointment of a personal representative is pending or has been granted, and the value of the estate assets, excluding homestead and exempt property, does not exceed $50,000;
- include a list of all known estate assets and liabilities, the name and address of each distributee, and the relevant family history facts concerning heirship
Although the Small Estate Affidavit is filed with the court, it is not entitled to an automatic approval by the judge even if all the requirements are met. Once the affidavit is approved, it should be filed in the real property records where the homestead property is located.
Understanding all probate methods can be daunting task for those who are not familiar with the process. Seeking a competent probate attorney to help guide you through your probate options can help you save time and money. Contact us to speak to a Houston probate attorney who can help devise a plan for your probate needs.