When someone dies in Texas and leaves assets that have not been moved to a revocable living trust, that property will be distributed through the probate process. If a dispute emerges during probate, or if you are a trustee or a beneficiary who needs help with probate, contact a Texas probate attorney.

A probate court supervises the payment of a decedent’s debts and the distribution of a decedent’s assets. The probate court also protects the interests of an estate’s beneficiaries and creditors. If the decedent had a will, the executor named in the will must file a request for the probate process to begin.

Probate can be exceedingly complicated, so the executor of a will should have the advice and guidance of a Texas probate lawyer from the start. If there is no valid will, the probate court will name an administrator who will close out the estate, pay the debts, and distribute the assets.

What Are an Executor’s Responsibilities?

Preparing a last will and testament (or a living trust) is essential for anyone who is an adult in the State of Texas. If you have not prepared a last will and testament, the probate court could end up transferring your life savings to the wrong people, and you will not have a say in the matter.

Generally speaking, in Texas, the executor of a will has four years from the date of the death to file for probate. If the executor does not file for probate within that time-frame, the state’s intestacy laws, which govern estates without wills, will determine how the assets are distributed.

In probate, a decedent’s estate pays appraiser’s fees, executor’s fees, court costs, lawyers’ fees, and other costs. Managing and probating an estate may not sound difficult, but probate has many parts, and an executor may have legal liability if he or she cannot perform an executor’s duties.

Finally, the executor must file a report which tells the court what the estate owns, how the assets will be distributed, and who will receive what. Anyone with a challenge may bring it at that time. When the assets have been distributed, the executor asks the court to close the estate.

What Can Happen in the Probate Process?

Probate in Texas gets complicated if a decedent resided in Texas but owned real estate elsewhere. If you live in Houston or Austin, for instance, but you own a condominium in Boca Raton, the condo will be probated by a State of Florida probate court.

A will is sometimes challenged. Usually, this happens when one or more beneficiaries believe that there is a mistake in a will or that the will was prepared under questionable circumstances. When a will is challenged, you must have an effective probate attorney working on your behalf.

If there are no challenges to the will, a smaller estate can often be probated within six months. However, if the will cannot be found, or if it’s challenged, there will be more involvement by the court, and the process may continue for a year or even longer.

What is Considered Part of Your Estate?

Not everything that a person owns is necessarily considered a part of that person’s probatable estate. Jointly held items, such as real estate holdings and bank accounts, if title a certain way become the sole possession of the other surviving owners.

Bank accounts and life insurance policies with payable-on-death designations go directly to the designated beneficiaries without going through probate.

Additionally, any property and assets that you transfer into a revocable living trust are no longer considered part of your estate. When it’s time, your trustee will be able to transfer those assets to your heirs without probate interference.

An Austin or Houston probate attorney can help you set up the revocable living trust that is right for you and your loved ones.

Can Probate Be Avoided?

In some respects, a revocable living trust is similar to a will. A Texas probate attorney can help you prepare the document and can help you transfer properties and assets – including your home, real estate, and vehicles – into the living trust.

Those properties and assets are still yours to use and manage because you will be the trustee of your revocable living trust during your lifetime, and you will designate a trustee who will receive the properties and assets upon your death.

At that time, your trustee – and not the probate court – will have the authority to manage the trust, pay the outstanding debts and taxes, and transfer what remains to the beneficiaries without a probate proceeding.

Privacy is another reason to consider avoiding probate, which is a court proceeding and therefore part of the public record. You want to avoid probate if your privacy – and the privacy of your loved ones – is a concern for you.

Wills and living trusts both name the party or parties who will inherit your assets after you pass away, but a living trust can spell out your instructions for your care if you become incapacitated, and it also lets your trustee manage your financial and business affairs during the period of your incapacity.

What Else Can You Do to Reduce Probate Costs?

If you choose not to set up a revocable living trust, giving away your properties and assets while you are alive is a smart option. Giving reduces your eventual probate expenses because the more your estate is worth, the more probate might cost.

Many gifts will not be subject to the federal gift tax, especially if they’re under the annual gift limit (but you may have to file IRS Form 706 – the gift tax form so speak with your CPA), and anything you donate to a tax-exempt charity is also exempt. A Texas probate lawyer can help you prepare an estate plan that reduces the cost of probate or potentially avoids it entirely.

What Else Should You Know About Probate?

Without a probate lawyer’s help, the probate process in Texas can be long, costly, and daunting.

You may need a lawyer to file an application to probate a will or to represent the estate in court. Complications – like challenges to the will, out-of-state property, or multiple beneficiaries – may also require a probate lawyer’s help.

No one knows what tomorrow may bring, so the time to create a will, a revocable living trust, or a comprehensive estate plan is now. You can learn more about probate, wills, living trusts, and estate planning by consulting promptly with a Texas probate or estate planning attorney.