What Is Probate In Texas?
Probate is a court process by which assets are transferred after death. The only way you can transfer real estate is for the person who presently holds the deed, or other title document to property, or for one holding a power of attorney for that person, to sign a deed or other title document transferring it to another. If the owner has passed away, the power of attorney is no longer effective, and no one may sign a deed or other transfer document for the deceased person, making transfer impossible.
In probate, the court either admits the Last Will and Testament to probate or opens an Administration in the case in which no Last Will and Testament is admitted to probate. The terms of the Will determine how to dispose of the assets of the estate. Without a Last Will and Testament, the court must first determine the identity of the legal heirs, open an Administration, appoint an Administrator or Administratrix, and then authorize that Administrator to settle the debts of the estate and dispose of the assets according to the law of Intestacy. The Intestacy statutes determine how the property is divided and disbursed.
The Executor, in the case involving a Will, or the Administrator, in the case of an Intestate Estate, is appointed and thereafter undertakes to identify and muster all the assets of the estate and the debts of the estate, settle the debts and disburse the assets of the estate.
What Factors Set The Stage For Probate To Occur?
After an individual dies, someone must step forward and file an application to admit a Will to Probate or open an Administration. Generally, you need a probate or administration if you have assets which are titled assets such as real estate, bank accounts, retirement accounts, annuities or other financial assets and vehicles which must be transferred. The Probate Court will issue Letters Testamentary or Letters of Administration which letters give authority to the Applicant to collect or muster the assets and settle the accounts of the estate.
In some cases, with limited assets, no debt, and a valid Will, the party may elect to Probate the Will as a Muniment of Title. Muniment of Title is an abbreviated procedure which can be used to transfer a limited number of assets quickly. This procedure should be used with care because, once a Will has been admitted to Probate, even as a Muniment of Title, a formal probate cannot be opened later, even in the case of discovered claims or additional assets not previously known to the Applicant.
Is Probate Necessary?
Probate is only necessary if you need to transfer titled assets, or if you have significant debts and you also have titled assets that need to be transferred. In some cases, it’s necessary even if a person has a trust. If they forget to put all their assets into the trust, then it would be necessary to probate the estate to put those assets into the trust, so the trust can distribute them according to the terms of the Trust Agreement.
What Are Some Ways And Options For Avoiding Probate?
A Trust Agreement is a popular means of avoiding probate. A trust is simply an agreement between you and several other individuals, who would serve as a trustee[s]. A trustee is appointed by the Trust and serves to hold and manage assets for your benefit or for the benefit of others. For the Trust to be effective, you must transfer the ownership of your assets into the Trust. Then, the trustee can make all the distributions when you pass away, according to the terms and conditions set forth in the Trust Agreement without the necessity of Probate.
A small estates affidavit can be used if the assets to the estate exceed known liabilities, excluding debts secured by the homestead and other exempt property, if 30 days have elapsed 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 on the date of the affidavit, excluding homestead and exempt property, does not exceed $75,000.
There are other elegant methods for avoiding Probate which involve how you own property. You can hold property as a joint tenant with a right of survivorship with the person you want to take your property if you pass away. If you own real estate as joint tenants with right of survivorship, then when you pass away that property automatically belongs to the other person. This option is only effective if the intended survivor survives. Beneficiary designations and pay on death instructions are also effective means of transferring insurance proceeds and financial assets upon death.
Finally, you can simply give away your property before you die. This option can be used effectively in limited circumstances.
Can Someone Realistically Navigate The Probate Process On Their Own?
You have the right to represent yourself in the probate process or in any court proceeding. However, probate is one of the oldest areas of law and there are many antiquated rules, a strange vocabulary and legal principles that you must grasp to effectively navigate the probate process. Some attorneys find the process difficult. While you can technically handle probate on your own, I recommend you have an attorney help you. The stress, time and costs incurred by one handling a probate or administration without the expertise of an experienced attorney will greatly outweigh the cost of a knowledgeable and experienced attorney.
For more information on Probate Process In The State Of Texas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (940) 440-5250 today.