FAQs About Probate
Do I have to probate when my loved one dies?
Answer: The short answer is that some estates need to go through probate while others don’t. The determination of whether an estate must be probated depends on a variety of factors including the family makeup, intended beneficiaries, the terms of any will, the nature of the estate assets and debts. If there isn’t a will, then the decedent’s property goes through an administration process called intestate estate administration. Some instances when probate can be skipped are: (1) the state offers a simpler process for smaller estates (discussed below) or (2) the property is held jointly with another person so the property is transferred automatically outside of the probate process.
Why would I need to probate?
Answer: Probate is very important when the decedent’s estate consists of complex assets and debts, the intended beneficiaries are different than the decedent’s heirs at law, there are question about the meaning of the will, or when the decedent died without a will.
What does the probate process include?
Answer: The probate process depends on whether the decedent has a will or not. If there is a will, then an application to probate the will should be filed. If there isn’t a will, then an application to determine heirship and intestate estate administration should be filed. In both situations, a personal representative must be qualified and approved. This representative can be stated in the will or appointed by the court. Once approved, the court will grant them Letters Testamentary (when there is a will) or Letters of Administration (when there isn’t a will). These Letters are important because this gives the representative the power to gather the decedent’s property and deal with estate creditors. Once an application is approved and a personal representative is appointed, the representative will (1) publish notice to creditors, (2) give notice to any beneficiaries of the will, (3) deal with any claims against the estate, (4) gather up all the assets, and (5) file an inventory of these assets with the court. This process is the same whether there is a will or not. Once all the debts are paid and the assets delivered to the new owners, the personal representative will tell the court and the court will discharge the representative and state that probate is finished.
The intestate estate administration process is further described in: Dying Without A Will Might Harm Loved Ones.
How long does it take to probate?
Answer: The time it takes to probate can differ significantly. Why? Because each person has various factors that contribute to the time including beneficiaries, property, and if anything is challenged. Sometimes this time period can be shorter if you use a different probate method. The Probate of a Will as a Muniment of Title can shorten probate and cost much less. This method can only be used if the decedent dies with a will and without any debts (except those on real property). In addition, the will may not be ambiguous or vague. This way the court doesn’t need to interpret the will. How does it shorten the time? The will itself transfers the property of the decedent, so that no additional documents are needed to transfer title.
This method is further described in the article: What’s the Law Series: Probate (Part 1).
Our estate is small is there another way besides probate to get this done?
Answer: Yes. When the decedent’s estate is small, the court allows for a process called Collection of Small Estates Upon Affidavit. This occurs when a person dies without a will and owning no real property except for a home. The process can occur when (1) the total value of the decedent’s estate (except for their house) is less than $50,000, (2) a petition for appointment of a personal representative hasn’t been filed with the court, and (3) the decedent’s assets must be more than their debts and liabilities. The affidavit is filed with the court and must list all the assets, debts, and liabilities; be signed by two disinterested witnesses; and it must distribute all of the decedent’s property. This affidavit can be filed 30 days after decedent has died. However, since the decedent died without a will, the property will pass to the decedent’s intestate heirs at law and not to individuals chosen by the decedent.
This method is further described in the article: What’s the Law Series: Probate (Part 1).
Is there a time limit for filing a probate?
Answer: Yes. In Texas, the limit is four years from the decedent’s death. But, the court allows probate as a Muniment of Title to occur after this time period when whomever if trying to probate the will can prove that they weren’t at fault for not providing the will earlier. This situation could happen when the will was only recently found.
THE TAKEAWAY: These questions and answers touched on the basics of probate. Each person might have different factors that can make probate tricky and complicated. So, make sure to check the estate and see if you can use one of the faster and easier probate options.
– The Business Team
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