How Is Probate Administered in Texas?
While all wills and the estates of those who die intestate (without a will) must generally go through probate in Texas, the vast majority of probate proceedings are conducted with what is called “independent administration.”
Independent administration gives the executor named in the will the power to make decisions and administer the estate without obtaining the approval of the court every step of the way. A properly executed will can include a provision requesting independent administration. Otherwise, the executor can request independent administration when probate begins, if all beneficiaries agree.
Under this type of proceeding, the executor also does not have to post a bond to cover the assets of the estate while probate finishes the distribution process involving creditors and beneficiaries.
Generally speaking, probate requires taking inventory of all the assets of the decedent’s estate, posting a notice to creditors in local media, then selling assets and paying creditors before distributing the remaining assets to the named beneficiaries. Independent administration allows this to be done almost solely at the direction of the executor, who is entitled to a five percent commission of the money the estate receives from selling assets and paying creditors. Cash at the time of death is not subject to commission.
At the other end of the spectrum is dependent administration, which often takes place when the family members either object to independent administration or dispute the will. A bond will have to be posted, and all decisions will have to be reviewed and approved by the probate court. Dependent administration can often cause proceedings to drag out for a longer period of time.
If a person dies without a will, the probate court itself will decide upon the distribution of post-creditor assets according to a hierarchy of survivors, starting with any surviving spouse and children.
Other Means of Settling Estates in Texas
Probate court proceedings can be avoided if there is no will and the value of the estate is $75,000 or less. The people who inherit the assets can provide an affidavit, or sworn statement, to collect the property, however, there is a 30-day waiting period.
Similarly, “if the decedent's estate, excluding any homestead, exempt property, and family allowance to the decedent's surviving spouse, minor children, and adult incapacitated children, does not exceed the amount sufficient to pay the claims against the estate,” then the court may authorize the executor to distribute the assets without going through regular probate.
Muniment of Title
There is also a process known as “muniment of title,” which can be used when there is a valid will, there are no unpaid debts except for real estate, and there is no Medicaid claim against the estate.
The person filing the will with the probate court can request it to be treated as a muniment of title (muniment means evidence). If the court approves this request, then the person making the request must file an affidavit with the court within six months certifying that the terms of the will have been carried out. There are no other probate proceedings required.
Assets Not Subject to Probate
Not everything must go through probate. Assets that can be transferred outside of probate include:
- Life insurance policies with a named beneficiary
- Retirement instruments with a named beneficiary
- Community property with right of survivorship
- Property held as joint tenancy with right of survivorship
- Payable-on-death bank accounts
How to Avoid Probate with a Trust
Proper estate planning can help you avoid the entire probate process by executing an instrument known as a trust. There are many different types of trusts that can serve different needs and circumstances. Specifically, a living trust that names a trustee to oversee all of your assets and distribute them to beneficiaries upon your passing will enable your heirs to skirt the entire probate process.
When it comes to trusts, I am also an experienced estate planning attorney who can help you create the right trust that serves your needs. I would be honored to meet with you to discuss how a trust, or combination of trusts, can benefit you and your loved ones — not only after your passing but also should certain circumstances arise that leave you incapacitated or otherwise unable to make decisions for yourself.
Hire a Trusted Texas Probate Attorney
In most cases, probate can take anywhere from a few months up to two years. The longer it takes, the more the costs tend to rise. With the help of an experienced probate attorney, you can simplify the entire process, especially if disputes arise among the beneficiaries. When these disputes do come up, a court will often order the parties to undergo expensive mediation procedures. However, if you have an experienced probate attorney providing reliable legal guidance throughout the process, you may be able to resolve any difficulties before they ever reach that stage.
An experienced probate attorney is also helpful in guiding and assisting the executor in the performance of his or her duties. The executor can face many difficult situations and decisions. An attorney’s helping hand can help the executor better understand the finer details of estate administration and help avoid any setbacks. At the end of the day, my goal is to help you and your family avoid any complications so that this difficult time can be spent with loved ones. So if you’re facing the prospect of probate, don’t face these challenges on your own. Call or reach out to my firm, K.E. Bradley Attorney and Counselor at Law, today to receive the legal guidance and support you need.