In Texas, when a person dies and leaves a will, that will must be submitted to the court. However, all wills do not have to be probated. For a will to be admitted to probate, the court must determine a necessity for administration. Only estates with no contests, no real property, no debt, and no accounts without satisfactory beneficiary designations can really avoid probate. All others require the probate court to direct the proper distribution of the decedent’s (the person who died) assets, although there are several procedural options within the probate umbrella. If the decedent did not name a personal representative to oversee the probate process, then the probate court will appoint one. The probate process transfers ownership from the decedent to the named beneficiary or distributee in the will.
Overview of Probate
There are several steps to the probate process:
- Submission of will. The personal representative must submit the will to the probate court that has jurisdiction over the location where the decedent resided.
- Preparation of inventory. Within 90 days of the date the will is submitted to the probate court, the personal representative must prepare an inventory of all the assets owned by the decedent with an accurate description of the asset and its current value.
- Notice to creditors. The personal representative sends written notes to secured creditors of the estate informing them of the death of the owner. The representative must also publish notice of the death in a newspaper approved by the probate court with the purpose of informing all creditors of the death. This gives creditors an opportunity to present their claims to the probate court.
- Payment of debts. Before assets can be distributed, all debts must be paid.
- Recognizing priority claims. There are some beneficiaries, like spouses, who the law may require to be paid first to be sure they get all assets to which they are legally entitled.
- Distribution of assets. After all creditors and priority claims are paid, the executor then distributes the assets according to the terms of the will.
Assets That Pass to Beneficiaries Without Going Through Probate
There are methods of how a person can have assets distributed at their death other than living a will. Some of those methods include:
- Establishing a living trust;
- Making accounts payable on death to a designated beneficiary;
- Owning property as community property with the right of survivorship; joint tenancy with the right of survivorship, or tenancy by the entirety;
- Life insurance proceeds with living beneficiaries;
- Survivor’s benefits from annuities;
- Retirement accounts that name a beneficiary.
Attorney Aubry Dameron at Springer & Lyle can answer your questions regarding wills, estate planning, and probate. She will review the detailed circumstances unique to you and guide you to deciding what specific estate planning documents will best meet your needs. Contact her at 940.387.0404 to schedule a consultation appointment.