What does it mean to probate a will? Probate is the legal process of making sure the property and assets of a decedent (deceased person) are managed and distributed correctly. Probating a will essentially means proving that the will really was the decedent’s last will and testament and following the directions it outlines for settling the estate—distributing the estate’s assets and paying off the estate’s debts. While it is simple enough in theory, many people find the process overwhelming.
Every situation is different, and within each of the following steps are a myriad of sub-tasks that must be accomplished. In general, though, here is what you will need to do in order to probate a will in Texas:
Validating The Will
After receiving a probate application, the court must first determine that the will is, in fact, the real will of the decedent and that it meets all legal requirements. When the court confirms that the will is valid, it is admitted into probate and the probate process begins. (If the decedent did not leave a will, the court will appoint someone as a personal representative and will work with them to figure out many of the specifics ordinarily outlined in a will, such as naming beneficiaries.)
Confirming The Executor
If the will names an executor (the person who will be in charge of managing the estate), the court simply confirms the person’s identity. If someone challenges the choice of executor, the court will determine whether or not they have any conditions disqualifying them from performing the role, such as a felony conviction or mental disability. If no executor is named, the court will appoint one.
In Texas, executors may pursue independent administration, which allows them to act on behalf of the estate without line-by-line permission from the court. Independent executors still have the responsibility of managing the estate in accordance with the law and the decedent’s directives, but they can do it without the court looking over their shoulders every step of the way.
Taking Inventory of Assets
Once an executor is confirmed, they have 90 days to make and file a complete record of all the estate’s assets, along with a description and value of each asset. The court may grant an extension if you need more time, but don’t put it off. Not only does the inventory need to include any property, possessions, and money left in the estate, it must also include any retirement accounts, investments, debts, and unpaid taxes or bills. Determining the value of some assets may require appraisal by a professional.
The executor should also keep separate inventories of assets that are not passing through probate, and of expenses incurred during the settling of the estate.
Distributing The Assets
When it’s finally time for everyone to get their money, the first slice of the pie always goes to anyone with a claim against the estate. If the decedent took out any loans or has any outstanding bills, they must be paid out of the estate, liquidating assets if necessary. All taxes on the estate must be paid. The executor must also give some kind of public notice to give unidentified creditors the chance to make a claim on the estate. Any probate-related expenses should also be paid out of the estate at this time. Only when the executor is completely satisfied that all debts have been settled should they begin distributing assets to the beneficiaries identified in the will (or identified by the court if there is no will).
How long probate takes depends entirely on the specific situation. An estate with only one heir and a very simple will might be settled in just a few months, while wills with more complicated directives and multiple beneficiaries and creditors can take several years. And of course, if someone decides to contest the will, expect everything to take longer.
There are times when probate is not necessary. For example, assets that are left in a living trust do not go through probate, life insurance benefits are paid according to the policy, and a living spouse may be able to automatically assume ownership of an estate in “community property” states like Texas. But probate is required more often than not. Someone might set up a trust so that their heirs do not have to go through the probate process only for the heirs to find that the trust did not specifically cover every one of the decedent’s assets—requiring them to go through probate anyway.
Luckily, with a good understanding of how probate works, the probate process doesn’t have to be painful. Keep good records every step of the way, and when in doubt, consult an attorney who specializes in probate law.
