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Texas Probate FAQ: What You Need To Know Before You Go

Texas Probate FAQ: What You Need To Know Before You GoWhen Norman Greenbaum dies, you can bet his soul is “going up to that spirit in the sky” he sang about, but his assets…well, there is a good chance they will go through probate. Probate is the bureaucratic court process that takes care of our physical belongings, monetary assets, and property after we die. It ensures that they go to the people that we intend them to go to, or whomever the law decrees should we pass on without a will. This article covers the basics every Texan should know about the process, including:

  • What probate and probate court is, and when you are likely to find yourself or your assets there.
  • Why some people try to avoid probate in Texas, and why a will is not sufficient to do so.
  • Why you should not try to navigate the probate process on your own without the help of a Texas probate court attorney.

What Is Probate And What Triggers It In Texas?

Probate is a judicial proceeding that covers a number of essential steps and functions after someone dies. These can include…

  • A county court judge determines whether a person’s last will and testament is valid.
  • If the person did not have a will, then the judge would determine who their heirs are.
  • They will also deal with challenges to the will or contenders who should be inherent.
  • The court will appoint someone as executor of the will or estate, who will handle the transactions.
  • They will set about getting the property or assets out of the deceased’s name so that they can be passed on to their beneficiaries.
  • Finally, once the beneficiaries have received the assets they are due, and any contentions resolved, the probate for the deceased is closed.

In other words, by the end of the process, the court determines who will be entitled to inherit the decedent’s property at the time of his or her death, and sets about ensuring they get it.

It is required whenever someone dies with assets or property still in their name, with or without a will. For most families, it is a smooth and seamless, if sometimes lengthy, process. Though there are some horror stories as well.

Is Texas Probate As Bad As Everyone Says It Is?

Most of the time, the stories that lead to probate getting a bad reputation are outliers. There is a lot of exaggeration both about the amount of time that probate takes and the costs associated with probate. The painful outliers are often because of internal family strife and contention, rather than because of any problem in the legal procedure.

In most probate proceedings, especially if there is a will, the whole procedure will last only about a month to six weeks. The proceedings can, of course, last longer if there is no will, but usually, we’re still talking about three to four months at the most. Having a will is certainly no get-out-of-probate-free ticket.

Can A Will Prevent Probate In Texas?

While not having a will can certainly slow down your probate procedure, having one does not exempt you from it. A will still needs to be probated to be valid in Texas.

In other words, the probate court has to determine that the will was actually signed by the deceased. Furthermore, they have to determine whether the decedent knew what they were doing when they made out the will and when they signed it.

Additionally, probate also handles the transfer and/or sale of any property included as part of the estate that was still in the deceased person’s name, to ensure it can legally be transferred (or the proceeds from any sale can be) to the beneficiaries.

That is why the only real way to avoid probate is to ensure there are no assets or property left under your name when you die.

Can I Avoid Probate For My Estate After Death?

It is absolutely possible to avoid probate entirely in Texas. You can do so by using one or more alternative estate planning strategies in addition to any will.

You might use a trust, in which you transfer the property out of your ownership to the trust. This means that while you retain control of the property during your life, at the time of your death, the property passes pursuant to the terms of the trust. So it is then not necessary to go through the probate process.

Can Someone Realistically Try To Navigate The Probate Process On Their Own Without An Experienced Texas Probate Attorney?

While any legal process can, in theory, be handled on your own, it would not be advisable for most individuals to try to navigate the probate process without an attorney. Probate is complex, and has a lot of rules most people would not be aware of or understand, because of the complexity involved with it.

Even attorneys who do not regularly practice probate would have a difficult time navigating through the process. So usually it is best to have a probate attorney, someone experienced in probate law, with you throughout the process. For more information on the Probate Process In The State Of Texas, an initial consultation is your next best step.

David Cain, Esq. - Bankruptcy and Estate Planning Attorney - San Antonio, Texas

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For Your Free, Phone Consultation
(210) 761-5002

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