Probate

When a loved one passes on, it is a sensitive time for family members.  Often there is much to be done, and decisions to be made about the loved one’s remains and property.  Family members often wonder what to do about a loved one’s (or decedent’s) property (or estate).  Generally, if a decedent left a will, you should probably probate the will, even if only as a Muniment of Title. A will does not pass title to property until it is determined by court order as being a valid will. Once the will is determined valid by court order, then decedent’s property (estate) is distributed according to the terms of the will.  If a decedent did not leave a will, then his/her estate is distributed according to the laws of the State of Texas.

A decedent’s estate is divided into two categories:

(1) Probate assets consist of personal property and real property, and are distributed according to the terms of decedent’s will, if he/she had a will.

(2) Nonprobate assets consist of bank accounts, life insurance policies, IRAs, 401Ks, etc., and are not controlled by decedent’s will, but instead are distributed according to beneficiary designation.

Probate refers to the method by which decedent’s estate is administered and processed through the legal system.  The probate process helps transfer decedent’s estate in an orderly and supervised manner.  The probate process generally consists of the following basic steps:

1) Determine, appoint and swear in personal representative;

2) Notify heirs, creditors, and the public that decedent has died;

3) Inventory decedent’s property;

4) Pay decedent’s debts owed; and

5) Distribute decedent’s estate to heirs.

 

If someone dies in Texas with a will (testate), their estate may be probated in one of the following ways:

(1) Dependent/Independent Administration;

(2) Muniment of Title;

(3) Affidavit of Heirship; or

(4) Community Property Administration.

 

If someone dies in Texas without a will (intestate), their estate may be probated in one of the following ways:

(1) Small Estate Affidavit;

(2) Affidavit of Heirship;

(3) Determination of Heirship (with administration if necessary); or

(4) Community Property Administration.

Remember, generally, probate proceedings must be filed within four years from decedent’s date of death.  However, there are exceptions to this general rule, so if more than four years from decedent’s date of death have passed, you should seek the advice of an attorney to determine what options are available.