When people plan for the future, it’s common that they have assets they want to leave to others when they die. However, if a decedent leaves property and assets that have not been transferred to beneficiaries through a trust, direct payments such as IRAs or pensions, or other means, the assets will likely be distributed through probate.
While Texas probate is not as complex as it is elsewhere, there are still many rules, requirements, and deadlines to meet when resolving a loved one’s estate. So, it’s important to have information on the Texas probate process to better understand which assets are subject to probate, the different types of proceedings, and alternative methods for settling affairs.
Probate is a legal process where the court recognizes a person’s death, oversees the payment of the decedent’s debts to creditors, and oversees distribution of the decedent’s assets to beneficiaries according to the laws of the state. If the decedent died with a will, the probate court must certify that the will is legally valid and meets all state requirements. In general, the role of the probate court is to facilitate the process and ensure that the interests of all beneficiaries and creditors are protected.
If the decedent dies with a valid will, the representative or executor named in the will typically files for probate. If the decedent has a valid will, it makes the probate process easier on surviving family members and beneficiaries. If the deceased did not have a will—meaning they died intestate—a probate judge will oversee the estate’s execution.
In general, probate is intended to transfer the deceased person’s accounts, assets, and valuables to intended heirs.
The Different Types of Probate in Texas
Texas has three different types of probate:
- Muniment of title. If the decedent had a will and there are no unpaid creditor claims on the estate, the will may be eligible for muniment of title. Muniment of title is, in effect, an expedited form of probate—it can often be resolved in less than 30 days. However, muniment of title should not typically be used for complex estates or for decedent’s who held real property in states other than Texas.
- Independent administration. If the decedent’s will requests independent administration, and all of the beneficiaries agree, the probate court may permit the estate to resolve its affairs with minimal oversight. The majority of Texas probate claims are pursued and resolved through independent administration.
- Dependent administration. With dependent administration, the court will oversee and approve each step in the probate process. While dependent administration is infrequently requested, it is often demanded in instances where a will or an estate is being contested.
Assets That Don’t Go Through Probate
All real property and assets are subject to probate unless they were transferred to a beneficiary by other means. The following types of assets, or arrangements, are not subject to probate:
- Assets held in a trust. If the decedent established a living trust, the assets listed in the trust will transfer to beneficiaries outside of probate. Living trusts can hold most any asset, including homes, stock portfolios, and brokerage accounts. While trusts serve a variety of purposes, many Texas residents establish trusts for the specific purpose of avoiding probate.
- Joint tenancy assets. Property, accounts, and other assets that are held in joint tenancy—each owner has a co-equitable interest in the asset—will automatically transfer to the surviving owner, provided they have the “rights of survivorship.” Joint tenancy is frequently used by married, home-owning couples.
- Beneficiary designations. Life insurance policies, along with several other types of accounts, allow an individual to designate a beneficiary to whom the proceeds will pass after they have died.
- Transfer-on-death accounts. Similarly, some bank and financial accounts allow people to name a beneficiary to whom the contents of the accounts will be transferred on death. This arrangement must be made before the account holder dies.
- Enhanced Life Estate Deeds. Also known as the “Lady Bird Deed,” an enhanced life estate deed allows a Texas resident to transfer a property to another person upon death. Texas is one of only five states which recognizes Lady Bird Deeds.
It’s important to remember that most real property and assets can be exempt from probate, provided the decedent employed the proper estate planning strategies.
Small Estate Affidavits as an Alternative to Probate
If you’re the executor or administrator of a small estate that would likely go through probate, you can request that it be closed using a small estate affidavit. This legal document can be used to transfer property and assets to beneficiaries without a formal probate. Many estates do not qualify for small estate administration, and heirs can only use the affidavit under certain conditions, including:
- The decedent died without a will.
- The decedent left less than $75,000 in property, not including their homestead and any other exempt properties.
- The decedent’s assets are worth more than their debts.
- The only real property owned by the decedent was their homestead, and that property is to be inherited by someone cohabitating with the decedent at the time of their death.
- All of the heirs are willing to sign the small estate affidavit.
- There are no challenges to the estate.
- The court agrees that no further administration is needed.
Contact Us Today
No matter whether you are trying to navigate Texas probate for the first time, administer an estate, or plan your future legacy, we are here to help. We can assist you online, over the phone, or at any of our offices. We are located in Dallas, Collin, and Denton counties. Send us a message online now to schedule your free initial consultation.
Related links:What happens if I die without an estate plan?