texas Probate process
Probate in the Houston area is the legal process of executing the estate of a deceased individual by resolving all claims and disbursing one’s property at the behest of a valid will. The process often requires the aid of the local courts.
Estate is the total net worth of an individual. It’s determined by combining the sum of one’s assets, including legal rights, interests, and entitlements to all owned Houston real estate.
Probate Estate is any type of property that stands in the individual’s name alone at the time of their death. It requires a designated executor to transfer. Probate estate does not include jointly-held property or assets that are payable to beneficiaries at death.
Executor is an individual appointed to administer the estate of the deceased individual. Either appointed by the testator of the will - the person who makes the will - or by a local court in Texas, the executor’s main duty is to carry out the instructions of the deceased.
Freedom of Testation is the right to leave owned property at the time of death via a will.
Letters Testamentary is the written authority given to the executor to act on behalf of the decedent’s estate. Executors must present this document before selling a house during probate in Houston.
Types of Probate
There are many different types of probate in Texas. The nature of the probate determines how simple or complex the overall process may be for beneficiaries, executors, and courts.
One of the most common types of probate is the Testate Administration. This means the deceased left a will. To begin the probate process, an application for probate with the Texas Probate Court must be filed in the decedent’s county of residence. Texas law requires a minimum of two weeks before scheduling the initial probate hearing. During this two week waiting period, the county clerk posts a notice at the courthouse to alert any parties that may be interested in the probate estate.
After two weeks, a local judge determines the validity of the will. The judge examines the will and the decedent’s death certificate to decide if the court has jurisdiction and qualify the proposed executor. Once the application for probate is approved, the assigned executor receives Letters Testamentary. With this document, the executor gains the legal obligation of collecting the estate’s assets, paying any debts and taxes accrued by the deceased, and collecting debts owed to the estate.
Within one month of the initial probate hearing, the qualified executor must post a public notice in the local newspaper to alert creditors of the estate. This allows creditors to submit a claim against the estate. After this is done, executors may list any unclaimed property for sale.
Within 90 days of the initial probate hearing, the executor must file an Inventory, Appraisement, and List of Claims with the county clerk. The documents serve as a detailed list of estate assets and their determined value.
After all debts of the estate are paid, the executor is obligated to distribute estate assets to the will’s beneficiaries as directed by the deceased. If the estate is taxable, all necessary tax returns must be filed within 9 months from the decedent's date of death.
Types of Probate Without a Will
There are three other main types of probate that are validated by the courts without the deceased submitting a will: the Independent Intestate Administration, Dependent Intestate Administration, and Probate Will as Muniment of Title.
Under Texas law, if the deceased fails to create a will, the probate court will rule a Dependent Intestate Administration. Instead of an executor, the courts assign an administrator to carry out the will and handle the estate. The administrator is required to gain court approval during each step of the probate process outlined above. This process demands higher administrative fees and legal costs due to the additional procedures.
As an alternative, heirs can appeal this ruling and agree to an Independent Interstate Administration. With this probate type, the court appoints an independent administrator to oversee the estate. The independent administrator requires minimal court supervision, and thus, less funds to hire.
In some simple cases, if the decedent dies without creating a will, the probate court divvies up the estate’s assets to the remaining heirs without assigning an administrator. The judge determines the proportions of the estate and doles them out to each heir.
The probate will as a muniment of title is used when a court determines the probate process will last more than four years after the decedent’s death. It is also occasionally used when the estate is made up of real estate property alone. When probating a will as a muniment of title, the deceased’s will is validated within the probate court without the administration of an executor. Once the judge approves the will, the document can be used like a deed to transfer property to heirs.
Asset Distribution According to the Texas Probate Code
Assets are dispersed among heirs in strict accordance to the Texas Probate Code. If the deceased leaves behind a valid will, heirs and beneficiaries receive the probate estate within six months of the initial probate hearing. If the deceased was unwilling or unable to create a valid will, the probate estate is distributed according to the Houston Texas courts. Heirs and beneficiaries can sell a house in probate in Houston only after they legally receive the assets through this statutory formula.
The Texas Probate Code states that if the deceased is single with no children - and without a will - the entire probate estate will pass equally to surviving parents. If the deceased has siblings or other descendants of siblings - such as nieces and nephews - the surviving parent would only be granted half of the estate; the other half would be divided among the siblings and descendents at the administrator's discretion. Rarely, the entire probate estate is passed to the State of Texas; this occurs only if an unmarried person dies without a single heir.
In Houston Texas, if the deceased is unmarried with children, their entire estate is distributed equally among the surviving children. If descendents are of the same degree of relationship to the deceased, they receive equal shares of the assets. However, if descendents differ in their degree of relationship, Texas probate courts favor direct descendents when dividing assets. For instance, the deceased’s children will be given more than the deceased’s grandchildren.
For the deceased without a valid will leaving behind a spouse, the Texas Probate Code is more complicated. Instead of the surviving spouse inheriting all of the probate estate, Texas courts determine if the estate is community property or separate property. Community property - property purchased during the marriage - is solely passed to the surviving spouse, unless the deceased has children with another partner. In that case, the surviving spouse keeps their half in the community property while the other half is divided up between the children. As for separate property, the Texas Probate Code states the surviving spouse is entitled to one-third of the property. Houston Texas courts also permit life estate: the right to use a particular property until death.
If you are going through the probate process in the Houston, TX area -- Harris County or Fort Bend County, all you need to do is contact me. My objective is to make the process stress free.
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