When a person passes away, his or her assets must be disbursed according to his or her estate plan and, when applicable, state laws. A probate lawyer helps executors of a will or beneficiaries of an estate through the probate process.
What Constitutes Probate in Texas?
Probate is the process by which a deceased person's assets and belongings, known as their estate, are passed on to his or her heirs and successors. It depends on your jurisdiction, but most matters related to wills, estates, conservatorships, and guardianships are handled by probate courts.
Each probate case is unique, so probate processes and outcomes can look very different.
In general, the probate process begins when a person passes away. A petition is filed with the proper court to have probate opened. The next step is to identify the executor or personal representative of the decedent's estate.
- If there is a will, an executor will likely be named in it.
- If there is not a will or an executor is not named in a will, a probate judge will nominate an administrator.
Once the executor or administrator is approved and appointed by the court, generally he or she must:
- Secure all property;
- Notify beneficiaries or heirs;
- Notify creditors;
- Take inventory of the estate, including real estate and personal effects;
- Pay debts and taxes; and
- Distribute property to beneficiaries.
How probate proceeds depends on whether there is a valid will and whether the court orders administration of the estate as independent or dependent. Texas provides for independent administration free of court supervision. This means that after an independent executor or administrator is approved and an inventory of estate assets has been filed, the executor or administrator can take care of the administration of the estate without further court involvement or supervision. A dependent administration can be more costly for an estate but is sometimes necessary.
Probate With a Will
If a person dies with a will, the will must be found, filed with the proper court, and authenticated before its terms are put into action. This process often involves a court hearing. During this hearing, an interested party may contest the will. If the court decides the will is invalid, the state's intestacy laws will apply.
Probate Without a Will
If there is not a will, a person is said to have died intestate. This does not mean the deceased person's assets will not be inherited, it just means the property will pass to his or her heirs through their state's intestacy laws. Without a will, the court will need to determine the decedent's heirs. This process often involves a court hearing.
Do You Need a Probate Lawyer?
Whether you need a probate lawyer depends on how well the estate plan was set up and what types of assets and debts are included in the decedent's estate. Regardless, the probate process can be complex and a probate lawyer can assist with simplifying the process. Additionally, most probate courts in Texas require an executor to be represented by an attorney.