Probate is required in Texas when someone dies with a will, or dies without a will and leaves assets worth more than $75,000. There are, however, ways to avoid probate.
Probate is not needed when there is no will and the estate is valued at $75,000 or less, in which case a small estate affidavit is used. Probate can also be avoided through estate planning methods that an estate planning attorney can help you implement.
Filing – An application for probate must be filed with a court in the county where the decedent resided. Larger counties have designated probate courts, but smaller counties file with the general county court.
Posting – After filing, the county clerk will post a notice at the courthouse that the probate application was filed. The notice will remain in place for two weeks and if no one has contested the will or the administration of the estate during that time, the court will open the administration. Service of process by mail or in person may be necessary depending on the type of probate.
Appointment of Administrator/Executor – The judge will hold a hearing and legally recognize the decedent’s death. The judge will then verify that the decedent’s will was valid or that there was no will, and then the judge will either recognize the executor if there is a valid will or appoint an administrator if there is no will.
Inventory of Assets – It is the job of the executor or administrator to catalog and file with the county clerk all the assets of the estate within 90 days of their appointment. The document is called Inventory, Appraisement, and List of Claims. There is an exception though for independent executors. They may file an Affidavit in Lieu of Inventory that swears that there are no unpaid debts and that all beneficiaries have received a copy of the inventory. This exception provides privacy for the estate by not making the inventory public record.
Heirs and Beneficiaries Identified – If there is a valid will, the executor of the estate must notify the beneficiaries. If there is no will, the Texas probate court will determine the heirs. Determination of heirship can be complicated. The application to determine heirship must be filed in the county where the real property of the estate is located, and if there are unknown heirs, notices of the probate proceedings must be posted in newspapers and at the courthouse. A secured creditor may also initiate the determination of heirship proceedings.
Notifying Creditors – The creditors of the estate must be notified so that debts can be paid out of the estate before the assets are distributed. Creditors are typically noticed by publication in the local newspaper.
Resolving Contests – If a beneficiary is contesting the will, the judge must hold a hearing and make a ruling on the issue before the assets can be distributed. The person contesting the will must prove in court that it is invalid. If the will is found to be invalid, the estate must be administered under the laws of intestacy.
Distribution – Finally, the assets must be distributed to the beneficiaries or the heirs.
Other than Dependent Administrations, probate typically takes between 3 to 6 months. If disputes arise, it can take much longer.
The attorney fees may range may be as low as $1,000 or significantly higher, depending on the work involved, the complexity, and the type of probate. For example, a Muniment of Title may only cost $1,000 to $1,500 in attorney fees, whereas a complex Dependent Administration could cost up to $10,000 or more. Court costs and the costs to publish, post, and serve notices could cost an additional $500.
The probate process is very complex and involves extensive legal knowledge. Each case is unique, and the process could be as simple as a few filings and a single prove-up hearing, or it could be multifaceted and require a great deal of court involvement. If you are unsure of where to start or even how much work the probate process will involve, schedule a consultation with our Texas Probate Attorneys.