Probate in Texas: Common Misconceptions

What is probate? Put simply, probate is a court process after someone passes away, where a personal representative is appointed to administer and distribute the deceased person’s estate. When there is a Will involved, this process involves proving that the Will is valid. If there is no Will, the process involves determining who the heirs are, per Texas default laws. As Texas probate laws are complex, and they come into play during an already upsetting and stressful time, probate is often feared and misunderstood.

Truthfully, probate might not be as harrowing as you expect. There are many misconceptions and “truisms” out there that paint the probate process in a bad light. Of course, like with any legal process, there are indeed problems and pitfalls that can complicate things, and people do speak badly about probate for many valid reasons. However, with the help of a good attorney and proper estate planning, you can make the probate process as stress-free, inexpensive, and quick as possible for your loved ones after your death.

So what are some common misconceptions about the probate process?

“The first step is a reading of the Will to the family.”

This Hollywood scene is a major pet peeve of mine! The idea of a family gathering around in a room while the lawyer reads out the Will of a deceased relative is not part of any legal process and is just dramatic fiction. Even if there is a private Will reading, a Will must pass through the probate process in the Court to be formally declared valid and to begin estate administration. In any case, early on after the initial application for probate with the Court, the Will becomes public record and is no longer “secret.” The idea of a Will reading in some private setting never really happens because it serves no legal purpose.

“Probate is horrible, long, and expensive!”

Not always! If uncontested, and with the help of a good probate attorney, the process is not too stressful. Most matters are taken care of anywhere between 3 to 6 months, if there are no complications. If the probate case is contested, or if there are certain unusual complications (no Will, multiple creditors, etc.), then it will be pricier and more stressful…but so is any other lawsuit or complicated affair, so probate is not unique here!

“If I don’t have a Will (or if nobody can find/contact my descendants), then the State takes all my property.”

I’m surprised at how frequently I hear this. The State only receives property from an estate in very extreme and unusual circumstances where someone dies with no living “heirs” at all (heirs is not synonymous with descendants). Dying without a Will leads to “default” distribution rules in Texas, and there is a process for determining who your heirs are and where they are located. As long as there are living heirs who are entitled to receive property, they will have an interest in the estate, even if they live in another country or had no knowledge of the deceased person. However, as your “heirs” are determined by default rules in Texas in case you die without a Will, a Will is recommended so you can decide how, and to whom, your property passes after death.

“If I have a Will, I don’t have to go to probate.”

No…probate is required to validate a Will. However, with a Will, the probate process is typically faster, cleaner, and cheaper than without one.

“Probate (or my Will) takes care of all of my property.”

Not always! While this might be true for some people, there are many complications here and it is important to talk to an attorney to understand precisely what your Will controls. Jointly-held property/accounts and things with contractual beneficiary designations (such as most life insurance policies) are usually not controlled by a Will.

So how does probate work?

Generally, the goal of probate is to have a personal representative (whether an executor, administrator, or otherwise) formally appointed, and to get the authorization they need to administer and distribute estate items. However, the process is different depending on whether someone dies with or without a Will. Probate cases where someone died with a Will usually follow the basic pattern below:

• An attorney files an application for probate on behalf of the executor named in the Will.
• A hearing is set and the Executor submits proof of the Will’s validity to the judge.
• After a successful hearing, the judge signs an order admitting the Will to probate.
• The Executor then receives Letters Testamentary, which authorize the Executor to fully administer the estate.
• Notice of the opening of the estate must be given to certain creditors and published in a newspaper.
• The Executor must file an estate inventory within 90 days, unless an extension is granted.

Probate cases where someone dies without a Will usually follow the basic pattern below:

• An attorney files an application for the administration of an estate and for determination of heirship.
• Heirs must be determined, to see who inherits property per Texas default intestate rules.
• A hearing is held to determine the heirs and appoint an administrator of the estate.
• After a successful hearing, the judge signs an order that appoints an estate administrator.
• Letters of Administration are granted to the estate administrator. The freedom of the administrator to administer the estate without court supervision depends heavily on other facts.
• Notice of the opening of the estate must be given to certain creditors and published in a newspaper.
• If an administration is dependent (explained below), there may be further court hearings to get approval for certain estate activities, like selling or distributing property.
• The administrator must file an estate inventory within 90 days, unless an extension is granted.

These lists are very basic and do not cover all details, but the general process in most simple estates is as described above. These lists do not anticipate contested affairs, which invariably drags out the process and adds more steps.

Doesn’t sound all too bad– so why do people fear probate?

When people talk about probate being terrible, my hunch is that they are specifically referring to a Dependent Administration. A Dependent Administration is the default type of administration in Texas probate cases where someone dies without a Will. What this means is that the administrator is “dependent” on Court approval for most decisions, requiring constant reporting to the Court and several hearings. If a Dependent Administration is contested, or if there are numerous creditors after the estate, the burden and stress on the personal representative becomes even worse. A Dependent Administrator must often post bond as well, which is yet another disliked feature.

In short, dependent administrations are definitely the “bad” side of probate and are disliked for valid reasons. Unfortunately, this type of administration is the default situation if someone dies without a Will in Texas. Even a simple Dependent Administration can be much more expensive than probating a Will.

How can I avoid a Dependent Administration?

The simplest way to avoid leaving your loved ones a Dependent Administration after your death is to get a valid Will and ensure that your Will calls for an “Independent” Administration, without bond. A Will with such a provision could save a significant amount of time, stress, and expense.

If someone has already passed away without a Will and the family/beneficiaries wish to avoid a Dependent Administration, an Independent Administration can still be established if all beneficiaries agree to have one, and if the Court allows it. If the beneficiaries do not all agree, you wind up in a Dependent Administration. As always, family cohesion is key, but a Will plus family cohesion is even better!

How can I avoid probate entirely?

Trusts and various Will-alternatives can assist in avoiding probate, though depending on the size of the estate and how diligent the person is in administering the trust, probate may not always be avoided. It is entirely possible that someone duly places 99% of their property during life into a trust, which avoids probate…but before they die, they purchased a car and an investment home (for example) that were not put into the trust. Does the family have to go through probate to distribute this car and investment home?

The answer is…it depends. With a Will, there may be a way to fast-track through the probate system (though it isn’t always available) , or a full probate may be required, though it would be significantly easier and faster than if there was no Will or Trust present. Without a Will, as always, the process is more complex and an administration may be required for the property not placed in trust.

The cheapest and simplest way to avoid the common problems that come with probate is to get an attorney to draft a Will for you. Even a simple Will could save your family a lot of money, though it will not avoid probate. Even if a Will is contested in Court, a Will drafted by an attorney is likely to survive any contest and still saves your family time and money in the long run.

For probate avoidance (as opposed to simply avoiding common problems associated with probate), a trust may be more to your liking. This requires more administrative oversight though and can be more expensive to set up, but the ability to avoid probate while still helping control property after death makes a trust a very powerful tool.

Hopefully the idea of probate does not sound quite so terrible after explaining some common misconceptions. Of course, probate is still not fun and problems can always arise, but most issues (like avoiding Dependent Administrations) can be dealt with by proper estate planning and a Will from a good attorney. As you can only create an estate plan and sign a Will while you are alive, it would be good to plan ahead and set things up when you can!

If you have any questions about estate planning, Wills, Trusts, or probate, feel free to contact us today at (832) 390-2949 to set up an initial consultation.