Introduction
The probate process can seem overwhelming, especially during the difficult time following the loss of a loved one. A lot of our clients have misconceptions about the probate process and believe it to be very complicated and expensive. In Texas, the way an estate is handled can vary significantly depending on whether the deceased left a valid will or died intestate (without a will).
At Curbside Attorney, we believe in making the legal process as straightforward as possible for our clients. Here, we’ll discuss the probate process in Texas, the differences between having a will and not having one, and the importance of avoiding the complications of heirship and dependent administration.
Probate with a Valid Will
When someone dies with a valid will, the probate process is generally more straightforward. The will specifies how the deceased’s assets should be distributed and appoints an executor to oversee the estate.
Independent Administration: Most wills in Texas include a provision for independent administration. This means the executor can administer the estate with minimal court supervision, making the process quicker and less expensive. The executor can pay debts, distribute assets, and handle other estate matters without needing frequent court approvals.
Probate Steps with a Will:
File the Will: The executor files the will with the probate court in the county where the deceased resided.
Notice to Heirs: The executor notifies heirs of the probate proceedings or can have them sign a waiver of citation.
Hearing to Admit Will and Appoint Executor: After that, a hearing occurs where the court inspects the will and admits it to probate. Once this is done, the Court appoints the independent executor. The appointed independent executor then receives "Letters Testamentary" that prove they are the appointed representative of the estate and authorized to handle its business and assets.
Notice to Creditors: The executor notifies any potential creditors of the probate proceedings and their appointment as the independent executor so they can make any claims against the estate. This is done by publishing a notice in the local newspaper.
Inventory, Appraisement, and List of Claims: The executor files an inventory of the estate’s assets with the court. The court must approve the inventory.
Distribution of Assets: After paying debts and taxes, the executor distributes the remaining assets according to the will.
Probate Without a Will (Intestate)
When someone dies intestate, the estate is distributed according to Texas intestacy laws. This process can be more complex and time-consuming because it actually involves two (2) separate but related legal proceedings. First, the court must determine the rightful heirs. Then, the court has to appoint someone to administer the estate.
Heirship Proceeding:
Without a will, an heirship proceeding is required to establish who the legal heirs are. This process involves:
File Application for Heirship Determination. An interested party must file a request for the court to determine a person's heirs.
Court-Appointed Attorney Ad Litem: As part of the heirship. the court appoints an attorney ad litem to represent unknown heirs and ensure a fair determination of heirs.
Proof of Heirship: Heirs must provide evidence of their relationship to the deceased, often involving testimony and documentation. At a minimum, two independent and disinterested witnesses with knowledge of the decedent's family and marital history must testify to identify the heirs.
Ad Litem's Report: The Ad Litem Attorney conducts their investigation and files a report with the court, giving their opinion as to who the heirs are and what they share of the decedent's separate and community property.
Court Determination/Hearing: After the Ad Litem files their report, a hearing is scheduled where the court hears the testimony of the applicant (who filed the suit), the two witnesses (who must show up in person), and the recommendations of the attorneys. If the evidence is sufficient, the court will issue an order declaring the heirs and their respective shares of the estate. This is sometimes referred to as a Judgement of Heirship.
Dependent Administration: In many cases of intestacy, the court may require dependent administration, which involves:
Court Supervision: The administrator must obtain court approval for most actions, including selling property, paying debts, and distributing assets. There is a mechanism for having an independent administration if all heirs consent to it.
Increased Costs and Delays: Dependent administration is more costly and time-consuming due to the need for continuous court involvement and oversight.
Why Everyone Needs a Will
As you can see, a probate of a will is significantly easier than an intestate probate. Thus, creating a will can significantly simplify the probate process for your loved ones.
Having a will clearly outlines who inherits your assets, eliminating the need for complex and often contentious heirship proceedings. A properly drafted will designate an executor, and the estate should be independently administered. Including a provision for independent administration in your will allows for a smoother and less expensive estate administration process. Moreover, a will ensures your assets are distributed according to your wishes rather than being subject to the default rules of intestacy.
Conclusion
At Curbside Attorney, we strive to make estate planning simple and accessible. Having a valid will not only ensures your wishes are honored but also spares your loved ones from unnecessary legal complications and expenses. Your home and assets are significant investments, and securing them with a well-crafted estate plan provides peace of mind for you and your family.
We offer affordable fixed-fee probate products that can handle both the probate of a will and intestate probate, which you can read about here:
Contact us today at Curbside Attorney to start planning your estate. Let us help you create a will that protects your legacy and provides clarity for your loved ones. Avoid the pitfalls of intestacy and ensure your estate is managed efficiently and according to your wishes.
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