If your loved one died and their will named you executor, you might need help administering their assets and settling their estate. Contact the probate lawyers in Austin at Smith Family Law immediately.
Probate can take time, be complicated, and be stressful. You’re already coping with the death of your loved one and don’t want to take on other responsibilities. However, probate is necessary for the court to certify the will and grant permission for the transfer of assets.
Smith Family Law knows the ins and outs of probate in Texas. We can guide you through the process, protect your rights, and help you perform your duties as executor. Call us at 512-714-2877 for a free consultation with a family law attorney in Austin to learn more.
An Overview of Probate
Probate is a legal process in which a probate judge reviews a will, determines whether it’s valid and legally enforceable, and gives permission to the executor or administrator to transfer estate assets to designated beneficiaries. If you’re navigating this process, speaking a probate lawyer in Austin can be crucial. The judge governs everything to protect the rights of anyone with interests in the estate, such as a creditor or heir, and ensures that the executor carries out their duties.
A valid will must meet these requirements:
- Be in writing
- Signed by the person who created the will or by someone else on their behalf while under their direction or in their presence
- Signed by at least two credible witnesses who are 14 years of age or older
Probate isn’t only for making sure named beneficiaries or heirs of the decedent receive the property left to them in the will. It also establishes unpaid debts and taxes for the executor to pay while administering the estate.
Outstanding debts someone owes when they die are subject to action by creditors. If the decedent didn’t allocate funds, the executor may sell assets or use specific property to repay creditors.
Types of Probate in Texas
Multiple kinds of probate are available depending on the circumstances.
Typically, state law requires the executor to go through formal probate proceedings if the value of the decedent’s property in the estate is less than $75,000. However, specific property is exempt from formal probate. The maximum value of an estate applies whether or not the deceased had a will.
Formal probate can involve either type of administration:
- Independent estate administration
- Dependent estate administration
Independent administration is often less costly, more efficient, and simpler than dependent estate administration. The executor can ask the court for the authority to act as an independent executor even if the will doesn’t specify independent administration if all named beneficiaries permit it.
The executor can act independently during the administration process, for the most part, and does not have to:
- Ask the court for permission to sell assets, pay debts, distribute to heirs, and set a family allowance.
- Post a bond, an insurance policy that safeguards the estate from losses due to dishonest or careless acts.
The independent executor must provide the court with an inventory of estate assets and send creditors notice of the death. They must also protect and manage the property until the time comes to distribute them to the beneficiaries or heirs.
A dependent administration is another option if the executor chooses it. Although less common than an independent administration, some prefer it because it allows more court supervision and keeps the error count low. With this process, the executor needs court approval for actions like selling assets or settling debts.
Muniment of Title
When someone with a will passes away, muniment of title offers a simple, cost-effective method for asset transfer. The court might approve the muniment of title if it concludes the will should enter probate and:
- The testator’s estate doesn’t owe debt besides debts secured by a lien on real estate; or
- Determines probate administration isn’t necessary.
The applicant must file the will with the court and request probate as a muniment of title. If the judge approves the request, they will admit the will into probate. The will becomes the evidence of title to all assets in the decedent’s estate and becomes the document that allows the distribution of those assets to entities or people named as beneficiaries in the will.
The person asking for probate as a muniment of title does not need to be an executor or administrator of the estate. The court also doesn’t have to appoint one. The applicant must file an affidavit within six months stating the terms they carried out as listed in the will.
Small Estate Affidavit
If someone dies without a will, the people entitled to inherit their estate don’t have to wait for the court to appoint a personal representative if the estate assets, not including exempt and homestead property, exceed known liabilities and if:
- Thirty days have passed since the decedent’s death;
- The value of the estate assets on the affidavit date, except exempt and homestead property, is no more than $75,000;
- There isn’t a pending or granted appointment of a personal representative;
- The affidavit is filed with the court clerk having venue and jurisdiction of the estate and meets the requirements under state law;
- The judge approves the affidavit; and
- The heirs provide a copy of the affidavit to anyone who has possession or custody of estate property, owes money to the estate, or acts as a fiduciary, transfer agent, or registrar of or for evidence of property, indebtedness, interest, or other right that belongs to the estate.
Small Estate Procedure
After filing the appraisement, inventory, and list of claims or an affidavit instead of the appraisement, inventory, and list of claims, the personal representative can request the small estate procedure if the decedent’s estate, except exempt property, homestead property, and family allowance to the surviving spouse, adult incapacitated children, minor children isn’t more than the amount needed to pay claims against the estate.
The representative must pay any claims against the estate according to the order provided by the court and based on the estate assets subject to paying those claims. They must also submit a personal representative’s account to the court with an application for the allowance and settlement of the account. For a more nuanced understanding and direction through this process, speaking with a probate lawyer in Austin is highly encouraged.
Speak to a Knowledgeable Probate Lawyer in Austin
Smith Family Law understands how overwhelming it can be to deal with the legalities of someone’s estate while trying to grieve their passing. We’ll guide you through each step of your loved one’s probate process.