Texas Probate Process
Probate is the legal process by which the court distributes a person’s assets after they pass on. With few exceptions, regardless of whether you have a will, your estate will go through probate. However, like most other legal proceedings, probate is costly, public and time-consuming. At the Houston estate planning law firm of McCulloch & Miller, PLLC, our knowledgeable team of attorneys works closely with individuals and families to help them arrange their estates to minimize the assets that must go through probate. We also provide valuable guidance to family members or executors who are unfamiliar with the complex probate rules.The Texas Probate Process Explained
When someone dies, their assets will eventually be passed on to their heirs or, if they have a valid last will and testament, to the beneficiaries named in the will. However, before the court transfers ownership of any assets, the estate must first go through probate.
The probate process is quite complex; however, it can be broken down into a few steps. First, someone, typically the executor named in the will, must file an application for probate in the county where the decedent lived. Next, the court will post notice of the application for probate. This gives anyone who intends on contesting the will the opportunity to do so.
Assuming no one contests the will, the court will then determine if the decedent had a will. If so, the court will then hold a hearing to ensure that the will is valid. As long as everything checks out, the court will appoint the executor designated in the will. If there is no will, then the court will appoint an administrator of the estate.
The executor or administrator must then locate all estate assets, identify all beneficiaries, notify any creditors, and resolve any outstanding disputes among family members and beneficiaries. While the assistance of an estate planning lawyer is not required by law, it can make the process much more efficient, resulting in time and cost savings.Probate Frequently Asked Questions
No. While most estates need to go through the probate process, Texas law provides for a summary probate administration for “small estates.” To qualify for summary probate administration, the estate's total value (not including the value of the homestead, exempt property, and family allowances) cannot exceed the amount needed to pay back certain creditors. There is not a dollar-amount threshold above which an estate will not qualify for summary probate administration.
When it comes to determining the value of an estate, the general rule is that all assets are included except exempt and non-probate assets. Exempt assets are those that would otherwise be subject to probate but are excluded by law.
Exempt assets can include:
- A home, provided it is for the use of the surviving spouse or children of the decedent;
- Up to two firearms;
- Jewelry (up to a certain value);
- Tools, equipment and books;
- Farming vehicles; and
- One vehicle per person.
Non-probate assets are those assets that do not go through probate due to the nature of the decedent’s ownership interest. For example, jointly owned bank accounts, real estate held in joint tenancy with the right of survivorship, and most retirement accounts are non-probate assets. Non-probate assets generally transfer directly to the joint owner or beneficiary.
While it may not be possible to avoid the probate process altogether, you can take steps to reduce the amount of assets that are subject to probate. To learn more about converting probate assets to non-probate assets, reach out to a Houston estate planning attorney.
If you are thinking over your end-of-life plans and want to learn more about how you can help ease the process on your loved ones, reach out to the dedicated Houston estate planning lawyers at McCulloch & Miller, PLLC. For more than 35 years, we’ve been helping Texans plan for the future of coming generations by offering comprehensive estate planning services. To learn more, and to schedule a free consultation, give us a call at (713) 333-8900.