“Probate” is the legal process in which a court oversees the distribution of property in someone’s estate. Sometimes there is a Will, and sometimes there is not.
If there is a will, you are basically asking the court to find that the document is a valid and genuine will. If an administration is necessary, you will usually ask the court to confer on the executor named in the will the authority to administer the estate. Texas allows for an “Independent Administration” (meaning that it is not court supervised) if it is properly requested in your will. Having a properly drafted will with an Independent Administration can save the estate thousands of dollars in probate costs. Sometimes no administration is needed, which makes the process even easier and less expensive.
If there is no will (the person died intestate), you are usually asking the court to determine who the heirs are under the laws of descent and distribution of that state. If an administration is necessary, you will usually ask the court to confer on the administrator appointed by the court the authority to administer the estate. Unless the court waives it, this usually requires a “Dependent Administration” (meaning that the court must supervise and approve of everything coming in and going out of the estate), which can be very costly. However, sometimes no administration is needed, which makes the process a bit easier and less expensive.
The contents of your will, or if you do not have a will and are intestate, may have an effect on the Probate Proceeding.
Considerations for a choice of proceedings in Texas probate:
1. If there is urgent and immediate need for personal representative of estate, seek appointment of a temporary administrator.
2. If decedent left a will making testamentary disposition of property the same as would be made under the laws of descent and distribution, or if all heirs and distributees are of full age and wish to make a different division, consider whether the heirs and distributees would prefer to waive the will and make affidavits of heirship.
3. If estate is small, consider one of the following:
a. Collection upon affidavit; or
b. Application for order of no administration; or
c. Summary proceedings after appointment of personal representative
4. Consider probating the will as muniment of title only, if:
a. Decedent left a will; and
b. Estate owes no debts other than those secured by liens on real estate; and
c. There is no necessity for administration.
5. If decedent left a will naming an independent executor who is willing and qualified to serve, and if administration is desirable, file an application for independent administration.
6. Consider filing an application for court-appointed independent executor, if:
a. All of the distributees agree on the advisability of having an independent administration and collectively designate to serve as independent executor either:
i. The person named as dependent executor in decedent’s will; or
ii. A qualified person, firm, or corporation; and
b. No person is willing and qualified to serve is named as independent executor in decedent’s will.
7. If decedent died intestate, consider either:
a. Filing an application for letters of administration; or
b. Filing affidavits of heirship; or
c. Instituting proceeding to determine heirship.
8. If decedent left a will naming a dependent executor, consider filing the will for probate and applying for a dependent administration.
9. If decedent left a surviving spouse, consider having the spouse act as unqualified community survivor, or apply for community administration.
For additional information, please take a look at some of the following posts on related topics:
You Don’t Automatically Get The House
When Can You Use A Small Estate Affidavit In Texas?
Holographic Will – Better Than Nothing
Disqualified To Server As Executor?
Who Gets Your Retirement Accounts?
When Do You Have Authority To Act?
Pre-Paying Funeral/Cremation Plans
Does The State Of Texas Have Some Of Your Money?
Where Is Your Will and Who Knows Where To Find It?
What Are Community and Separate Property?
What Will The New Year Bring For Estate Taxes