Probate
Probate should be viewed primarily as a method of transferring assets after death. Not all property is transferred under the will through the probate process. Life insurance, retirement plans, individual retirement accounts and annuities typically pass outside of probate via a beneficiary designation. It is important in the estate planning process to review beneficiary designations for if there is not a beneficiary designation, if the beneficiary is the estate, or if all of the beneficiaries are deed, these assets may be paid to your estate and thus pass in accordance with your will.
Additionally, assets held in joint tenancy with right of survivorship (as opposed to tenancy in common) or under a pay-on-death (“POD”) arrangement with be distributed to the surviving joint tenant or beneficiary under the POD.
There is no requirement in Texas to probate a Will. Some transfers, especially those involving real property or assets held only in the name of the deceased, will require a probate proceeding.
The steps in probate with the Probate Court in an uncontested probate starts with the Application for Probate. After the original will is filed and after the required posting of notice, a hearing is held asking the Probate Court to admit the will to probate and appoint an executor if administration is needed.
How fast the hearing can be scheduled after the required ten-day waiting period is dependent on how busy the court’s docket is.
At the hearing there is oral testimony followed by the witness signing a Proof of Death and Other Facts.
After the testimony, the judge will enter hopefully an order admitting the Will to probate and direct the County Clerk to issue the Letters Testamentary which evidence the executors authority to act on behalf of the estate.
Before the Letters of Testamentary are issued however, the executor will need to take an oath to serve and carry out the provisions of the Will.
Within 30 days of receiving the Letters Testamentary, the executor will need to cause to be published in a local newspaper a statutory required “Notice to Creditors”. This notice must be published even if there are no debts.
Within 90 days, unless there is an extension granted, the executor must file an Inventory listing all the assets in the estate.
Finally, a “Notice to Beneficiary” is provided to all beneficiaries named in the Will along with a copy of the Will and a copy of the Judge’s Order admitting the Will to probate.
Depending on the size and types of assets and other issues, there will be additional tasks that must be completed during the probate process.
Duties of the Executor
The executor of your will is charged with the responsibility to collect, manage, and protect your assets; to pay your just debts and funeral expenses; to prepare and file federal estate and income tax returns; to pay the income and estate taxes required to be paid by your estate; to pay expenses of the administration of your estate; and to distribute your estate in the manner directed by your Will.
Your executor should exercise good judgment, prudence, common sense, diligence, fairness, honesty, have reasonable skill and have experience in the management of the types of assets which your estate comprises, or the good sense to obtain assistance in the management of those assets.