How Does The Probate Process Work In Texas?
If there is a valid will within which an executor or executrix has been named, then the first step in the probate process will be to file an application to admit the will to probate. Notice must be posted for at least 10 days before the court will schedule a brief hearing. At that hearing, the executor or executrix will be appointed to serve and given letters which grant them the authority to deal with the assets of the estate. After the appointment of the executor you must send notice to creditors and to anyone who is a beneficiary or a potential beneficiary under the will. An inventory is prepared and approved by the court. The inventory is a list of all the property and the value of the property in the estate, at the time of the death of the decedent.
Once the executor is appointed, we file a notice with the IRS and notices are sent to known creditors, otherwise referred to as 120 day letters. If the creditor doesn’t respond with an appropriate notice of claim in that time period, that claim is waived. Once all assets are collected, valid debts are paid and distributions made we can close the estate, though that is not required and in some cases, not recommended. Usually that process takes from 6 months to 1 year. It is a good idea to provide enough time for anyone who wants to make a claim to make it. If you close the claims too quickly, those claims can go against the executor personally.
If there is no will, the probate process is a bit more complicated but it’s not unduly burdensome. Two applications are filed, an Application to Open an Administration and for Issuance of Letters of Administration, and an Application for Determination of Heirs. Because we do not have a Will, the court must make a determination, on the record, of the heirs and how the property will be distributed. From this point forward, the process is very similar to the process with a Will.
In probates with a Will and without a Will, we can usually can get estates open which are independent administrations. That means the administrator or the executor can take care of all their duties without the court overseeing the process, with the exception of issuing letters, and approving the Inventory.
A dependent administration is required in Intestate estates, (Estates which do not have a Will), when the Will does not provide for an Independent Administration and the beneficiaries cannot agree to an Independent administration, and in estates with more than three known debts outstanding. In those cases, the court will set a bond that has to be posted by the person who wants to be appointed administrator. The court must approve all transactions. If you sell property in the estate, you must obtain the permission of the court first. The court is intimately involved in all the details of mustering and distributing the assets.
A dependent administration is significantly more expensive and time consuming than an independent administration.
Regardless of the type of estate, other matters may arise during the administration of an estate such as claims to collect money or property from the estate or the estate may assert claims against others to bring assets into the estate. In many cases these claims are unknown at the beginning of the process and can add significant complexity to the process.
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