Probate is the process in which a court recognizes that a person has died and oversees the payment of the decedent’s debts and distribution of the decedent’s property. Generally, a person has four years from the date of death of the decedent to file for probate. Generally, if the will is not probated in that time period, Texas intestacy laws (law when there is no will) will govern how decedent's property is distributed.
Some property is not distributed during probate, but transferred in another way. These non-probate assets include, but are not limited to, life insurance policies, retirement accounts, and pensions.
Steps to Probate a Will
Step 1: File the Will and Application For Probate
The will is filed with the county clerk in the county in which the decedent lived. An application for probate is filed with the proper court in the county where the decedent resided. This application will include information such as the date of death, the name and address of the deceased and identification of beneficiaries.
Step 2: Posting Notice (Waiting Period)
After filing the probate application, there is a two-week waiting period before a hearing can be held. The county clerk will post a notice at the courthouse stating a probate application was filed. If no contests are received, the probate court can proceed.
Step 3: Hearing and Order Admitting Will
A Texas judge will hold a hearing and recognize the decedent’s death and appoint an executor. The judge will determine whether the executor named in the will is qualified to serve.
Step 4: Inventory Assets
Once an executor is approved, they start cataloging and reporting all of the assets of the estate. Within 90 days after the appointment of an executor, the executor must file an inventory of all the assets with the probate court or file an Affidavit in Lieu Thereof.
Step 5: Notify Creditors
Within 30 days after the executor is qualified by the probate court, they must publish a notice to creditors in a county newspaper. Within 60 days of qualification, the executor must mail a certified or registered letter with return receipt requested to all secured estate creditors. The executor or administrator files proof of both types of notice with the clerk of the court.
Step 6: Pay Creditors and Resolve Disputes
Texas law provides the prioritizing of claims/debts. It is important to pay the right creditor in the right order the correct amount.
A will contest must be filed within two years after probate is filed. Usually, these issues are resolved through mediation. Yet, assets should not be distributed if there is a pending contest.
Step 7: Distribute Assets
After debts and disputes are resolved, the remaining assets can be distributed to the beneficiaries.
Probate can be a daunting task, but working with a probate attorney can ensure a smooth process. The process above is how probate generally works, but every situation is different and this can change. Call us today if you need help with any probate needs!
