Probate, the process of distributing someone’s estate after their passing, is never a fun process. Often the administrator or executor is a family member of the deceased, so on top of mourning the loss, he or she must also be the person who makes tough decisions about distributing the deceased’s estate. The time, costs, and energy required can vary dramatically depending on the type and size of the estate, as well as the completeness of the decedent’s estate planning documents. Whether a person passes away with or without a will can also affect the process. If the person does not have a will when they pass away, then settling the estate can be even more complicated. But there may be options.
The Probate Process
With a proper will, the probate process in Texas can be fairly straightforward and relatively simple. We will petition the court to admit the Will to probate and appoint the Executor named in the Will. Notices have to be published and/or sent to beneficiaries and some creditors. The Executor’s job is basically to collect all of the decedent’s assets, pay any legitimate claims, and distribute the remainder in accordance with the Will. Of course, there are many steps along the way and other filings with the court, but you will have an attorney to guide you through that.
If there is no will, the process is similar but has a few more steps. Also, since no Executor has been named, the court will appoint an Administrator (usually the person applying for administration of the estate), who will carry out the same functions as an Executor.
After a year you can ‘close’ probate. This means that the time to collect assets, file claims, and distribute to the beneficiaries end. Some Executors choose not to close probate. There are advantages and disadvantages and an Executor needs to be careful to make the right choice.
If the Will has the ‘magic language’, then the Executor can be appointed as an Independent Executor. If there is no will, then you may be able to be an Independent Administrator, but that is up to the court. If the Will does not allow for an Independent Executor – of the Court will not appoint an Independent Administrator – then the estate is handled through Dependent Administration. The difference is that an Independent Executor/Administrator can handle the estate without having to go back to court except for a few situations. In a Dependent Administration, the Executor/Administrator must get permission from the court to pay a claim, sell an asset, distribute funds, etc.
Alternatives to Independent/Dependent Administration
Sometimes you can make the process simpler or take care of disbursing assets when there is no will. The following options exist in some case, although every situation is different. Also, some of them are not available if there is a Will.
- Muniment of Title: A will can sometimes be probated as a ‘muniment of title’, that is to transfer ownership of property in the county records.
- Affidavit or Heirship: With some items – such as automobiles – an affidavit may be sufficient to transfer title.
- Small Estate Affidavit: If the estate meets certain criteria (basically, value of all assets other than a homestead is under $50,000), then you may be able to file a Small Estate Affidavit with the Court. This will often allow you to transfer the assets. However, it will not work in every case.