What Is The Probate Court Process?
Houston Probate Process
Facing the effects of a loved one’s death can be extremely difficult to deal with. The bonds you share with them are inevitably going to make it hard. But what makes it more complicated are the numerous legal and financial aspects that need to be resolved. Of these, none is more time-consuming than being able to navigate probate court on your own.
To help in this challenging time, it is valuable and necessary for you to reach out to a probate attorney at Chargois Harper Law Office. Doing so will guarantee that you do not spend hours of your personal time trying to grapple with information from the internet, which may give you erroneous information. Instead, you can talk to us and know that the advise we give you is backed by years of experience because we have handled hundreds of cases like yours before.
What is the probate court process in Houston, Texas?
Probate is the legal proceeding through which the courts formally acknowledge a deceased person’s (the decedent) death, settle outstanding debts, and transfer outstanding assets to the decedent’s heirs.
The procedure is intended to ease the transfer of a dead person’s estate and, when essential, to safeguard both beneficiaries’ and creditors’ rights in the decedent’s inheritance. Probate is handled at Texas’ Probate Courts.
Common Probate Terminologies
When probating a will in Texas, the phrase “decedent” will almost certainly be used often. This is the legal term for a decedent whose estate is now through probate.
Will: A will is a legal document in which a deceased specifies how he or she wishes for assets to be allocated to an heir or loved ones.
Estate: In Texas, an estate is defined as the whole of a decedent’s assets. These assets may include but are not limited to cash, real estate (homes, land, etc. ), stocks and bonds, life insurance policies, retirement accounts, automobiles, and personal possessions.
Beneficiaries: These are the individuals designated in a will or decided by the court without a will who will receive assets from the decedent’s estate.
Executor: When a person dies with a legal will in place, the document often designates an executor to handle the estate’s affairs. The executor’s primary responsibilities will be to inventory and catalog the decedent’s assets; pay estate bills and taxes; file litigation for estate claims, and distribute estate assets to the beneficiaries designated in the decedent’s Last Will and Testament.
Administrator: When a decedent dies without leaving a valid will, and no executor is designated, Texas law requires the deceased’s estate to appoint an administrator to perform the executor’s responsibilities. Frequently, the court will choose one of the principal heirs to fill this role.
How to Begin the Texas Probate Process
1. Preparation of the Will and Probate Application.
When someone dies with a valid will, the will must be submitted to the appropriate court, and a formal application to admit the will to probate and appoint an executor of the estate. Before the decedent’s death, the decedent’s will should be filed with the probate court in their county of residence.
Following the filing of the probate will, the court clerk will issue a notice at the courthouse informing any interested parties of the filing. The notification must be retained for a minimum of ten days. This waiting period is intended to provide people who seek to dispute a will with sufficient time to do so. If no one objects to the will, the courts will proceed with validating it.
However, it is essential to remember that this is not the sole avenue for contesting a will. A will may be examined in Texas at any time after it is submitted to probate and up to two years after it is admitted to probate.
2. The Hearing
A probate judge conducts the hearing. The court will validate the deceased’s death, determine if the person requesting to be administrator/executor can serve, and evaluate whether the decedent died with a valid will.
The applicant for appointment as executor of the estate must provide evidence establishing a few critical facts, including the decedent’s death date, the location of their legal residence, that the will be filed, in fact, the decedent’s last will and testament, and that the will was properly executed and witnessed. Additionally, the executor will take an oath to perform their legal and fiduciary obligations as executor.
Once the hearing is over and satisfied all conditions, the judge will admit the will to probate and designate the applicant as executor of the estate. The clerk will then give “letters testamentary” to the executor, notifying other parties that the executor has permission to act on behalf of the estate.
3. Inventories, appraisals, and a claim list.
Within 90 days of the hearing, the executor is responsible for inventorying and appraising the estate of the dead. Additionally, the executor is responsible for informing beneficiaries of the will, alerting creditors, paying bills, filing the decedent’s final federal tax return, and generally settling the estate.
Additionally, the executor may be in charge of estate asset disposition. A probate attorney may handle numerous of these responsibilities.
4. Resolving Dispute.
The estate cannot be settled until all problems are resolved, including arguments over asset value, disputing creditor claims against the estate, or opposing the will. Occasionally, conflicts arise about the executor’s obligations.
The executor is a fiduciary, which means that he or she is supposed to put the beneficiaries’ interests ahead of his or her own. If the executor fails to meet this fiduciary responsibility, the estate’s heirs may retain an attorney to launch a breach of fiduciary duty action.
These disagreements may be resolved in court but are more often resolved via mediation. A probate attorney can advocate for you in any legal difficulties.
5. The Estate’s Distribution.
After all obligations and pending litigation are completed, leftover assets are transferred to recipients. It is important to note that not all assets pass through probate: joint accounts with rights of survivorship; assets with designated beneficiaries, such as retirement accounts, IRAs, and life insurance policies; property held in trust; and real estate with a transfer-on-death deed are all considered non-probate assets and pass directly to the beneficiary without being subject to creditors’ claims or estate administration expenses.
The Probate Process: How Long Does It Take?
Probate often takes between six months and a year to complete in comparatively uncomplicated circumstances. However, it may take longer if the estate is complicated or if the will is disputed. Inability to discover the decedent’s will may also cause the procedure to be prolonged.
Is There a Time Limit on When the Probate Process Must Be Completed?
Within four years following the decedent’s death, an application for probate must be submitted. However, once the probate procedure begins, the estate administrator typically has three years to distribute the real property among the heirs. If there is a compelling reason, the administrator may request an extension.
What Happens to a Person Who Dies Without Leaving a Will?
The courts administer probate when someone dies intestate (without a will). Throughout this process, the courts will make an official Determination of Heirship to determine the decedent’s heirs and their respective shares of the decedent’s estate (in Texas, an estate’s property is divided according to whether it is classified as separate or communal property).
Additionally, the courts will select an estate administrator (often an attorney). The administrator will function in the same capacity as a designated executor and be responsible for the same probate obligations, including informing creditors, filing an inventory report with the County Clerk, and settling the estate.
Is a Will Probate in Texas Require Houston Probate Attorney?
In Texas, you must be represented by a qualified Houston probate lawyer if you are the executor or administrator of an estate. This is because the executor represents not just his or her interests but also the interests of the heirs and creditors.
While Texas permits people to represent themselves in court (referred to as “pro se” or self-help litigants), the state mandates that a qualified attorney represent all third-party interests. It would be deemed the unlawful practice of law if a non-attorney represented an estate in court.
With a Qualified Attorney, You can Navigate the Probate Process Smoothly.
Probate is a necessary process, but it can be challenging for someone facing this situation for the first time. So let’s make sure we do it correctly. A qualified probate attorney can assist with the probate matter and the entire process.
Getting legal advice from an attorney is the best way to ensure that the probate process goes smoothly and protects your rights. Speak with an attorney at Chargois Harper today to get started on your probate case. Schedule a free consultation with us.
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