Questions About Probate

Maybe you have questions about the Probate Process? 

What is involved? or Where to get Started?  

Here are some of the most frequently asked questions we field from our clients.

What is Probate? 

Probate is the process through which a Court recognizes Decedent’s will as valid and supervises the payment of Decedent’s debts and distribution of remaining assets to named beneficiaries.  If the Decedent did not leave a valid and enforceable will, his or her assets will pass according to state intestacy law.

What does the Probate Process Cost?

Because every probate situation is different, we do not have a set pricing for all plans. Generally, however, an uncontested probate matter can cost between $3,000 and $5,000. The costs can increase depending on factors such as: whether or not an original will prepared by an attorney exists; whether the beneficiaries agree on the plan; whether a trust needs to be created and/or administered for a minor; and/or whether significant debts or creditors to the estate exist.

Is there a way to avoid probate?

With careful planning during life, it is possible to create an estate plan that avoids probate. If avoiding probate is your goal, our estate planning attorneys can help you shift your assets from probate to non-probate assets. In many cases, this involves moving your assets into a revocable living trust that passes outside the probate system. In other cases, it may be possible to avoid probate through the use of payable on death accounts, transfer on death deeds, and accounts held jointly with survivorship rights. Finally, very small estates may be eligible for non-judicial administration.

While many clients fear probate, we’re fortunate that probate in Texas tends to be less expensive and involved than in other states. This is because Texas authorizes an independent administration, which limits the Court’s involvement in the estate. As such, the need to avoid probate is much less pressing in Texas than in other states, although trust-based planning is still an excellent way to provide for future generations, protect yourself in case of incapacity, and simplify the process of distributing out-of-state property at death.

Do I have to probate a very small estate?

The answer is: that depends. If you have a will that will must be probated to be recognized as the controlling document governing the distribution of the decedent’s assets. In certain situations a muniment of title can be used as a very simplified probate proceeding, however even in this situation the will must be probated, or formally recognized as valid, by the Court.

Similarly, if all assets are non-probate assets, each asset will pass by the terms of the document governing the asset itself.

If there is no will in place, probate is not required if the estate can be administered through a Small Estate Affidavit. A Small Estate Affidavit is only an option for small estate. The decedent’s estate must meet each of the following criteria:

  1. Decedent dies without a will;
  2. Assets total less than $75,000 (not including the homestead and other exempt property as defined in Section 353.051 of the Texas Estates Code);
  3. Assets are worth more than Decedent’s debts;
  4. The only real property owned was the decedent’s homestead, and will be inherited by a surviving spouse and/or minor children who lived with the homestead at the time of the decedent’s death;
  5. All heirs can be located and are willing to sign a Small Estate Affidavit;
  6. No personal representative has been appointed and none is needed to administer the estate.

How long do I have to probate a will?

In Texas, a will must be filed for probate within four (4) years of a person’s death.

What information will I need to provide?

Once you make the decision to work with the Heights Law Group, we will send you a questionnaire designed to help us determine how best to advise you.  Part of this questionnaire will ask you for information like:

    • Your deceased family member’s name, date of birth, address, and social security number
    • The date of death and copy of the death certificate
    • Whether or not a will exists
    • The names, addresses, and contact information for known and expected beneficiaries
    • Whether any beneficiaries oppose or contest the probate of the will or the application for letters of administration
    • Locations and addresses of homes, vacation homes, and real estate
    • Identification of cars, boats, RVs and vehicles
    • Identification of any business ownership interests
    • Identification of any stock holdings (outside of an IRA or 401K)
    • The names, addresses, and contact information for known and expected creditors, if any

Don’t worry.  The attorneys at the Heights Law Group will guide you on what is needed to assist you with the probate process.

What happens if a family member is married with children and dies without a will?

In Texas, if a person dies without a will (also known as dying “intestate,”) their assets will pass under the state’s laws for intestate succession, which vary depending on the decedent’s marital status and whether there are any surviving family members. If a person leaves a spouse, his or her community property will pass to the surviving spouse- but only if the decedent has no children or all the decedent’s children are also children of the surviving spouse.

What does this mean? Well, if Spouse A and Spouse B are married and have two kids together and Spouse A dies, all community property assets will transfer to Spouse B. But, if Spouse A has kids from a prior marriage, such that Spouse B is not the parent of all of Spouse A’s children, then the estate does not automatically transfer to Spouse B. Instead, deceased Spouse A’s one-half interest in the community estate will pass to his/her children.

While the Texas legislature has designed the laws of intestate succession to best mirror what they think people will want on death, we strongly advise everyone to get an estate plan that puts their actual goals into action. Your estate is the culmination of your life’s work and future legacy- be purposeful in determining what happens when you are no longer around.

What happens if a family member is unmarried, does not have children and dies without a will?

In Texas, if you die without a will, the disposition of your assets depends on what family survives you.

    • If both parents are living, your assets will pass equally to your parents.
    • If one parent is living and one parent is deceased and you have no siblings, your assets will pass to the surviving parent.
    • If one parent is living and one parent is deceased and you do have sibling(s), then half of your estate will pass to the living parent and half will pass to your sibling (or to your sibling’s decedents if your sibling predeceases you).
    • If both of your parents predecease you, your assets will pass to your sibling(s) or their descendants if any.
    • If both of your parents predecease you and you have no siblings or descendants of siblings, then half of your estate will pass to your mother’s side of the family and half of the estate will pass to your father’s side of the family.

It is extremely unlikely, but if a person dies without a will and has no surviving parents, siblings, descendants of siblings, or family on either the mother’s or father’s side of the family, then your assets will go to the State of Texas. When assets are transferred to the state, the process is known as “escheatment.”

Contact us today to get help with your Estate Planning, Probate or Litigation needs.