How Does A Will Go To Probate – Probate is the process by which the courts legally recognize the death of a deceased person (the deceased), settle his outstanding debts and distribute the remaining assets to his heirs. This process is designed to facilitate the transfer of the deceased’s assets and, where appropriate, protect the interests of beneficiaries and creditors in the deceased’s estate. In Texas, wills are handled by Texas probate courts.
When someone dies with a will in place, the will must be submitted to the competent court with a written request to accept the estate and appoint an executor. The decedent’s will must be filed with the probate court in the county of residence before death. After the will is filed, the Clerk of Court will post a notice in the courthouse informing all interested parties that the will has been filed. The notice must remain posted for at least 10 days. The purpose of this waiting period is to give those who wish to compete enough time to do so. If no one comes forward to challenge the will, the courts proceed with confirming the validity of the will.
How Does A Will Go To Probate
However, it is important to note that this is not the only opportunity someone has to challenge their will. Under Texas law, a will can be contested at any time after the will is filed in probate and up to two years after the will is admitted to probate.
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A probate hearing is held before a probate judge. During this hearing, the judge will determine that the decedent has died, confirm that the individual applying to be administrator/executor is fit to serve, and verify that the decedent died in a valid will.
An applicant seeking to be appointed as an executor must provide evidence that establishes several important facts, including the date of the testator’s death, his or her legal residence, that the submitted will is in fact the testator’s last will and testament, and that the will was properly executed and witness. The executor also swears to fulfill his legal responsibilities and duties as an executor.
Once the hearing is over and all requirements have been met, the judge will accept the will and appoint the petitioner as executor of the estate. The clerk will then issue “letters of probate” to the executor, which serve as notice to third parties that the executor has authority to act on behalf of the estate.
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The executor is obliged to list and assess the deceased’s property within 90 days after the hearing. The executor’s responsibilities also include notifying beneficiaries of the will, publishing notices to creditors, settling debts, filing the decedent’s final federal tax return, and otherwise settling the estate. The executor may also be responsible for the sale of real estate. A probate attorney can help with many of these tasks.
The estate cannot be resolved until all disputes have been resolved – be it disputes over the valuation of assets, contesting creditors’ claims against the estate or contesting the will. Sometimes disputes relate to the tasks of the executor. An executor acts as a fiduciary and is expected to protect and preserve the assets of the estate for the beneficiaries above their own interests. If the heirs of the estate believe that the executor is not fulfilling this fiduciary duty, they can hire an attorney to file a breach of fiduciary duty lawsuit.
These disputes can be heard before a probate judge, but are most often resolved through mediation. A probate attorney can represent your interests in all disputes.
Once all debts and potential disputes are resolved, the remaining assets are distributed to the beneficiaries. It should be noted that not all assets go through the probate process: joint accounts with right of survivorship; Assets with designated beneficiaries, such as retirement accounts, IRAs, and life insurance policies; Assets in trust; Or, the property that bears the deed of transfer at death is considered non-probate property and passes directly to the beneficiary without being subject to the claims of creditors and the costs of administering the estate.
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If you have questions about the probate process or concerns about how estate administration will be handled, please call (713) 909-7323 or contact us online today.
If you are an executor or administrator of an estate in Texas, you must be represented by a licensed attorney. This is because the executor does not only represent his own interests, but also the interests of the heirs and creditors. While Texas allows individuals to represent themselves in court (as “professional” or self-help plaintiffs), the state requires a licensed attorney to represent all third-party interests. If the estate is represented in court by a person who is not a lawyer, this is considered an unauthorized practice of law.
In relatively simple cases, the probate process takes about six months to a year. However, if the estate is complicated or the will is contested, it may take longer. The inability to determine the will of the deceased can also prolong the procedure.
A probate application must be filed within four years of the testator’s death. However, once the probate process begins, there is no deadline by which Texas estates must be finalized. If the estate is not completed within 15 months, in most cases the executor or administrator may be required to provide an accounting of all estate assets, debts and expenses. The executor then has 60 days to file a statement. If they fail to do so, the court can compel the executor to file an accounting.
How Does The Probate Process Work?
When a person dies without a will (intestate), the courts will control the will. During this process, the courts will issue a formal probate decree to determine the decedent’s heirs and their share of the decedent’s estate (in Texas, property is divided based on whether it is classified as separate property or community property).
Courts will also appoint an administrator of the estate (often a lawyer). The administrator will act in the same capacity as a named executor and is responsible for fulfilling the same duties as a probate executor, including notifying creditors, filing an inventory report with the county clerk, and settling the estate.
It is not uncommon for people to die because of unpaid debts. Common debts include mortgages, medical bills, credit card debt, and personal loans. When someone dies, their creditors are notified as part of the probate process. Notice to creditors is required by law and gives creditors the opportunity to file a lawsuit against the estate. In Texas, the requirement to notify creditors may be satisfied by notice published in a local newspaper. The executor or administrator of the estate will be responsible for paying off the creditors’ claims with funds from the estate.
When a deceased person’s estate includes business interests, a business law attorney can help facilitate business valuations and implement business succession plans for family limited partnerships and other businesses. Unlike many probate or estate planning law firms, Hendershot Cowart P.C. It includes a recognized business law practice that gives us the insight and experience to handle all types of estate administration cases involving businesses and other high-value assets – whether your goal is to continue a family business, liquidate assets or distribute business interests equitably.
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No, not all real estate is subject to probate. Small estates, or those worth $75,000 or less, do not need to go through the probate process. Alternatively, the heirs may choose to file a small estate affidavit. In addition, not all property is subject to probate. For example, community assets and life insurance with a named beneficiary do not need to go through the probate process.
An experienced probate attorney can assist in the probate process in a number of ways, including assisting the executor/trustee in fulfilling their responsibilities and providing guidance if/when the will is challenged or when there is a dispute between beneficiaries or heirs.
If you have recently lost a loved one and need help with the probate process in Harris, Fort Bend, Galveston or Montgomery counties, Texas, contact our law firm today or call us at (713) 909-7323. By clicking “Accept all cookies” you agree to the storage of cookies on your device to improve website navigation, analyze website usage and assist with our marketing efforts.
Probate Court is the part of the court system that oversees the execution of wills and the handling of estates, guardianships and guardianships. The probate court also deals with the placement of a mentally disabled person in institutions designed to help them.
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The probate court ensures that the will is executed in accordance with the wishes of the deceased. He takes care of the payment of all outstanding debts and the proper distribution of funds. The court supervises and usually must approve the activities of the bailiff appointed to deal with these matters.
In addition, the probate court has jurisdiction to contest the will
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