What Is Probate? Everything You Need to Know About the Legal Process

If you’ve ever lost a loved one and been left wondering what happens next with their home, bank accounts, or belongings, you’re not alone. That’s where probate comes in. Probate is the legal process that helps settle a person’s estate after they pass away. This means that whether there’s a will or not, the system makes sure everything is handled fairly, debts are paid, and assets go to the right people.

In this article, we'll cover:

• What is probate

• The probate process in Texas

• When probate is necessary

• Common probate challenges

Ready to learn more? Keep reading.

What Is Probate?

Probate is the legal process by which a deceased person's estate is administered and distributed. This process ensures that any outstanding debts are paid, and assets are correctly transferred to the intended beneficiaries, whether designated by a will or by Texas intestate succession laws when no will is present.

Key Terms to Know:

• Executor: The person responsible for managing the estate through probate (considered a type of personal representative).

• Beneficiaries: Individuals designated to receive assets from the estate.

• Heirs: Legal heirs entitled to inherit when there is no valid will.

• Intestate Succession: The process of distributing a decedent’s estate when there is no will.

What Does It Mean to Probate a Will?

Probating a will means taking it through the legal process to make it official. After someone passes away, their will doesn’t automatically go into effect—it has to be approved by the court. That’s what probate does. It confirms that the will is valid and gives the named executor the authority to act on behalf of the estate of the deceased person.

What Does Probate Without a Will Imply?

When someone passes away without a will, it’s called dying intestate. That doesn’t mean their belongings are left in limbo—it just means the court has to step in and follow state law to decide who gets what. In Texas, the probate court will appoint an administrator (instead of an executor) to handle the estate of the deceased person. The administrator’s job is similar: they’ll collect the property, pay any debts, and distribute the assets, but according to intestate succession laws, not the person’s personal wishes.

The Probate Court Process in Texas

In Texas, probate is a court-supervised procedure that involves several critical steps, from appointing an executor to distributing assets to the rightful beneficiaries.

Key Probate Laws in Texas

The Texas Estates Code contains the primary legal framework for probate in the state. Key sections that govern the probate process include:

• Texas Estates Code (Title 2, Subtitle F): This section outlines how probate works: the legal procedures for probate and estate administration, including how wills are validated and how intestate succession works if someone dies without a will.

• Letters Testamentary and Letters of Administration: These documents authorize the executor or administrator to manage the decedent’s estate. Letters of Testamentary are issued when there is a valid will, while Letters of Administration are used when there is no will or the named executor cannot serve. They grant authority to access bank accounts, manage real estate, pay debts, and distribute assets.

• Intestate Succession Laws: When there is no will, Texas intestate succession laws determine how the estate is divided among legal heirs, starting with spouses and children and extending to other relatives as needed.

• Recent Updates to Probate Law: Staying current on changes to Texas probate law is crucial. Recent updates include new rules for handling digital assets, using transfer-on-death deeds for real estate, and modifying small estate affidavit requirements. These changes can affect how estates are planned and probated.

Step-by-Step Probate Process

Probate is a legal process that can feel overwhelming, especially during a time of grief. If you need to go through probate in the future, you'll probably experience the following:

• Filing the Application for Probate: The probate process begins with filing an application in the appropriate Texas probate court, accompanied by a District Court Cover Sheet for Probate Actions.

• Appointment of Executor: A probate judge reviews the will (if available) and appoints an executor to administer the estate.

• Notice to Creditors and Beneficiaries: The executor must notify creditors and beneficiaries of the probate proceedings.

• Inventory of Estate Assets: The executor compiles a list of estate assets, including real property, bank accounts, digital assets, investment accounts, personal property, and any debts or obligations as far as inheritance is concerned.

• Paying Debts and Taxes: The estate must pay any outstanding debts, funeral expenses, estate taxes, and other expenses before distributing assets to beneficiaries.

• Distribution of Assets: After debts and expenses are settled and the value of the estate is known, the remaining estate assets are distributed to beneficiaries as specified in the will or by Texas intestate succession laws.

Probate steps and regulations do vary from state to state. The type of property and the specifics of probate administration will also play a role in how the process unfolds. To enhance your understanding of probate, consider consulting an experienced probate lawyer. You'll find everything a lot more manageable, and you'll gain clarity during a difficult time.

When Is Probate Necessary in Texas?

Understanding when probate is necessary can help families and executors make informed decisions, minimize costs, and streamline the estate administration process.

Situations Requiring Probate

• With a Valid Will: When a person dies with a valid will, probate is generally needed to authenticate the will.

• Without a Will (Intestate): If a person dies without a will, probate is required to appoint an administrator and distribute the estate according to Texas intestate succession laws.

• Complex Estates or Outstanding Debts: For estates with complex assets like real estate, multiple bank accounts, or debts, probate is necessary to manage these elements legally and fairly.

• Assets Solely Owned by the Decedent: Probate is often required when the decedent solely owned assets like real property or accounts without beneficiary designations, as these need to be legally transferred.

Exemptions from Probate

• Small Estates: Estates valued under $75,000, excluding homestead and exempt property, may qualify for a Small Estate Affidavit, avoiding the formal probate process.

• Non-Probate Assets: Assets like joint accounts, life insurance policies, retirement accounts with named beneficiaries, and assets held in a living trust do not go through probate.

• Community Property with Right of Survivorship: In Texas, some community property can pass directly to a surviving spouse without probate, provided it has the right of survivorship designation.

• Transfer-on-Death Deeds: Real estate can avoid probate if a transfer-on-death deed is in place, allowing property to pass directly to a named beneficiary.

Common Challenges in Probate

The probate process in Texas can be complex, often involving several challenges for executors, beneficiaries, and heirs.

Common Challenges During Probate

• Locating and Valuing Assets: Executors must identify and appraise all estate assets, including real property, personal items, retirement accounts, and life insurance policies.

• Dealing with Creditors and Debts: Executors are responsible for notifying creditors and settling any outstanding debts.

• Navigating Legal and Administrative Procedures: The probate process involves numerous steps, including filing forms, attending hearings, and obtaining Letters Testamentary or Letters of Administration.

Professional Probate Services Tailored for Your Needs

We understand that every estate is unique, and so are the needs of each family and beneficiary involved. That’s why we provide personalized legal support tailored to your specific situation.

Don’t navigate the probate process alone. Our experienced probate attorneys are ready to help you every step of the way. Contact us today to schedule your free consultation.