Probating an estate is generally necessary if you cannot transfer property and pay debts by some other means. This is usually determined on a case by case basis, and depends on what property was owned and how it was held, what debts there are, and the law of the state where the property is located. Some of the ways that probate can be avoided is through designating beneficiaries for certain types of property, or establishing trusts. In most cases though, probate is necessary to effectively and legally pass ownership of property on to the heirs or intended beneficiaries.
That isn't to say that you should be afraid to go through probate, especially in Texas. In some cases, probating an estate takes as little as 2 weeks, only involves filings and a very short hearing. However, should an Administration be needed after probating, Texas offers Independent Administration. This means that the executor or administrator of an estate handles the affairs of the estate themselves, with very little intervention from the Court. Probate is the way to invoke this power. It also has its advantages, in that it gives the executor or administrator some guidance in how they should handle the estate.
To help you understand a bit more, here are some of the more common situations where probate is necessary:
- There is no Will - Often times, where there is no Will, it is necessary to determine who the beneficiaries (known here as heirs) are and what they receive. This proceeding is known in Texas as a Determination of Heirship. It identifies the proper heirs of an estate, and what portion of the estate they receive.
- There are debts and/or taxes left to be paid - When a loved one dies leaving debts behind, as many of us do, those debts generally do not die with them. To handle these debts properly, an Administration may be needed. Probate is the first step that allows for a proper Administration. This effects estates that have Wills as well as those that do not. It is important to know however, that the estate is responsible for it's own debts, not the beneficiaries. You should never allow a creditor to attempt to force you into paying the debt of a deceased loved one.
- There is a valid Will - In many cases, such as those where property is solely owned by the decedent, it is necessary to probate a Will in order to properly transfer the assets of an estate. There are a number of types of probate proceedings, and having a properly drafted and executed Will helps to simplify these processes both in time and cost.
- There are problems with an existing Will - Many of the problems with existing Wills stem from incomplete or inaccurate documents, but they can also come from a persons ability, or capacity, to make a Will. These often lead to challenges, or contests, to the validity and integrity of a Will and estate. Probate is necessary in these situations to effectively resolve these issues.
- There are no named beneficiaries - In some cases, no beneficiaries are named, while in others the named beneficiaries died before the decedent. This is most common in matters relating to retirement accounts and life insurance policies. In these cases, how the law handles these assets is often dependent on whether there is a Will. In any case, however, probate is necessary to determine the proper beneficiary.
Probate clarifies Wills and heirs, and protects an estate from challenges to both the assets and the rightful beneficiaries. Although probate may be a necessary process, it can be avoided under the right circumstances. Trusts, for example, generally are not subject to probate. Even some Wills can be handled without the involvement of probate or the Court. Many of these options depend on the strategies developed with your Estate Planning Attorney, and involve the nature and ownership of the property in your estate.
As always, we recommend that you seek the advice of an attorney that specializes in estate planning, wills, trusts, and probate, in understanding all of your options under the law.
Sign up for our newsletter here.