Probate
Probate refers to the legal process by which a decedent's assets are distributed to heirs according to the terms of the Last Will, and Texas Statutes. According to Texas law, only assets titled in the decedent's name are probated. Assets titled in the name of a trust, jointly held assets, or accounts naming a beneficiary, are not probated.
What type of probate proceedings are there in Texas?
It is a common misconception that assets are probated only if they are part of a taxable estate. In fact, all assets titled solely in the name of the decedent are probated if there is no designated beneficiary on an account or policy, regardless of whether the estate is taxable.
Depending on a variety of factors, Texas probate proceedings vary in their length and expense. There are several kinds of probate procedures, depending upon the nature of the decedent's assets and the total dollar value of the assets.
Following is a brief description of the three basic types of Texas probate proceedings through which the elder law/estate planning attorneys at The Greening Law Firm, P.C. guide clients:
1. Formal Administration
The Last Will is admitted to probate and Letters of Administration are issued.
Creditors are served with the Notice to Creditors. The Creditor may in turn file a Statement of Claim.
Beneficiaries are served with a Notice of Administration alerting them that they may challenge the venue or the Last Will.
Formal Administration also allows for a Petition to Determine Homestead which is necessary if the decedent was on Medicaid and owns real property, as their home, or if there are other creditors from which the home requires protection.
2. Summary Administration
Summary Administration is allowable when one of the following criteria are met:
Assets in the gross estate are less than $75,000, and the petitioner swears that there are no creditors, or has made prior provisions for the payment of creditors.
or
The decedent has been dead for two or more years.
This type of probate results in an Order of Summary Administration ordering that all assets be delivered to the beneficiaries. One must be careful that all assets are included, because once the Order of Summary Administration has been signed, it is generally not possible to reopen the proceeding.
3. Small Estate Administration
A layperson may institute a Small Estate Administration without the assistance of an attorney provided the value of the estate falls below a certain level. Each Texas county sets the maximum estate value for Small Estate Administration. In Travis and Williamson Counties, the current ceiling is $50,000. The original Last Will, if any, a death certificate, and a paid funeral bill must be filed with the probate division.
What options do you have if you think there is something wrong with a person’s will?
A Will Contest occurs when there is something wrong with a Will. In some instances the Testator did not have actual "testamentary capacity" or "testamentary intent" to draft a proper Will. In such a situation the Will is not valid and interested parties including a beneficiary or heir that was disinherited or lost inheritance through the invalid Will can contest the Will as being invalid.
What are Common Grounds for a Will Contests?
There are several reasons that a Will may be contested including:
- the Will was written under the influence from another person
- the Decedent was not of sound mind when the Will was written
- the Will is a forged or fraudulent document
- the Will is not up to date and leaves out children or does not take into account a divorce or remarriage
- the Will was not witnessed or signed correctly, and 6) the Will was improperly done and does not comply with Texas law.
When can a Will Be Contested?
The Texas Probate Code gives interested persons two years after a Will has been admitted to probate to institute a suit to contest a Will. There are two exceptions to this rule that can extend this statute of limitations beyond two years. These exceptions include 1) contests based upon forgery or fraud or 2) contests brought on behalf of an incapacitated person (such as a minor) who recovers capacity.