11 Aug Part 1: WHAT IS PROBATE? WHAT ARE THE DIFFERENT WAYS TO PROBATE A WILL? Justin Crain, Partner
In simple terms, probate is the legal court process necessary to recognize a person’s death and administer their estate. It is a course of action that few people understand, but it is a necessary one to wrap up a loved one’s affairs. There are few things as devastating as the death of a spouse, parent or sibling, but it is something everyone will face at some point in their lives. Family members experience tremendous grief and, depending on the extent of the deceased’s estate plan, they can also be faced with the difficulty of probate, including interacting with insurance companies, identifying assets and investments, and coping with disagreeable family members. The probate process can sometimes be lengthy and expensive for those who have a will, and even more so for those without one.
Texas has two kinds of formal probate, as well as a more simplistic method that can be used in limited circumstances.
If a Will is not in place at the time of death, Texas law requires for the estate to fall under strict oversight by the probate court. This is known as dependent administration and the administrator must seek court approval for every step in the process of settling an estate, such as posting bond, hiring appraisers, filling an annual inventory, petitioning the court for permission to sell property or distribute assets, and submitting a final report with the court. The cost of probate with dependent administration is driven up substantially with additional reports that must be filed and judicial approval that must be sought. Unfortunately, the dependent administration may use up much of the estate property and funds that would have gone to the beneficiaries. However, if there is significant conflict or distrust between heirs, dependent administration may be the preferred method.
In Texas, the level of court participation in the probate process is contingent on whether there is a dependent or independent administration. Most Texas Wills instruct the executor to pursue independent administration since it is quicker, easier, and less expensive than a dependent administration. If the executor is confirmed as an independent executor, he can take the necessary actions to administer the probate, such as pay debts, sell assets, or distribute assets without having to obtain a judge’s approval each time. Even if the Will does not provide for this type of administration, the executor or administrator can ask the probate court for the authority to act as an independent executor if all the beneficiaries agree.
Small Estate Affidavit
If there is not a will and the decedent’s estate (not including the homestead and exempt property) does not exceed $50,000, then those who inherit property can prepare a simple affidavit to collect the property. However, it should be noted that the complexity of the Probate Code poses many pitfalls for non-lawyers attempting to comply with the Small Estate Affidavit requirements. An attorney’s assistance in drafting a Small Estate Affidavit may prevent the denial of an Affidavit where it would have been an appropriate probate procedure if the Affidavit had been prepared correctly.
Don’t go through probate alone. We are here to help. Schedule a time to talk with Justin or Jacob.