When I talk to my clients about what happens to the will when they’ve passed, I explain that the Executor will be the person responsible for probating the will. Inevitably, my clients ask, “What does that mean?” Probate is the process through which a court recognizes a person’s death and authorizes the Executor to proceed with the administration of the estate. As mentioned in the previous post, this means collecting debts, paying creditors, and distributing assets to the beneficiaries.
When there is a will, a named Executor will need to first file an application to administer the estate. Essentially, the court has to approve of the person named by the deceased to take care of their affairs. Then, the validity of the will must be proved in court. Generally, a will drafted by a knowledgeable Texas attorney will include a “self-proving affidavit,” which supports the validity of the will and simplifies the process. Once the will is proved and the application is granted, the Executor may begin the administration of the estate. Texas allows for Independent Administration, which means the Executor is free to carry out their duties without court oversight.
A will must be probated within four years of the death. However, if the will was not probated within these four years, there are other procedures that can be followed to settle the estate, though depending on circumstances the will may not be given the same consideration by the court. If the will is not proved valid, probate is denied. In that case, the deceased’s property passes to their “heirs at law” as if the person died with no will. This is called “intestate.”
If there is no will, an interested person can file an application to administer the estate. The court will verify heirs and settle the estate according to Texas intestacy laws, the laws that govern how property is distributed when a person dies without a will. The process of settling an estate without a will is more complicated than when there is a valid will present.
Local rules in some Texas courts require that someone filing an application to administer an estate or probate a will must be represented by an attorney. Because the Executor is responsible to the estate and all the heirs, courts want to ensure the Executor is given proper guidance. But this need for an attorney may cause some people to decide that they would rather not probate the will or administer the estate. Unfortunately, there are many problems that can arise by skipping probate. For instance, if the deceased owned real property, land or a home, and never transferred to deed to someone else, the property remains in the deceased’s name. This means that if the person living in the home or using the land ever wants to sell or if any tax issues or other administrative issues arise, there is no one with the authority to take care of those matters. Before proceeding with a sale or working with the tax office, the estate will have to be settled in some way, delaying these important matters.
Probate can seem daunting and overwhelming, but it doesn’t have to be. An experienced attorney can walk you through the process offering guidance and advice to help the administration of the estate go as smooth as possible.