Many people write wills to direct the distribution of their property to loved ones and other beneficiaries after their death. However, when a person leaves a will, does their executor have to go through probate? Knowing the requirements for probate in Texas can help your family prepare for the process of administering a deceased loved one’s estate.
What Is Probate?
In Texas, probate refers to the process of validating a deceased individual’s will (if they left one) and administering their estate. The courts oversee the probate process, lending authority to the administration of a deceased person’s estate and the distribution of their property. The primary purposes of a probate proceeding include:
- Authenticating a decedent’s will, if they left one
- Appointing the executor named in the decedent’s will or another individual as administrator
- Gathering, inventorying, and securing the decedent’s assets
- Paying the estate’s debts, expenses, and taxes
- Distributing estate assets to beneficiaries named in the will or the decedent’s heirs under Texas intestacy laws
Do All Wills Go Through Probate in Texas?
Although most decedents’ wills go through the probate process, an estate administration might avoid probate in limited circumstances, depending on the decedent’s asset structures and estate planning strategies. However, an estate must go through probate if the decedent passed away with assets titled solely in their name, without any beneficiary designations (such as a life insurance policy beneficiary designation or a transfer/pay-on-death designation for a bank account). Even when an estate must undergo probate, Texas law provides more streamlined proceedings for smaller, less complicated estates.
Situations That Require Probate
Circumstances that may trigger the requirement for probate in Texas include:
- A decedent owned real property solely in their name
- The decedent did not have a transfer/pay-on-death designation for their bank or brokerage accounts
- The decedent failed to make a beneficiary designation for their life insurance policies, retirement accounts, or annuities
- The decedent did not place all their assets in a trust
- The decedent has outstanding debts
- Parties contest their right to inherit the decedent’s assets
Circumstances Where Families Can Avoid Probate
Families can minimize or avoid the probate process through various estate planning tools, such as:
- Creating a revocable living trust to pass assets to beneficiaries
- Titling real estate in joint tenancies or community property with right of survivorship or in transfer-on-death/Lady Bird deeds
- Making a payable-on-death or transfer-on-death designation for financial accounts
- Having valid beneficiary designations for life insurance, retirement, or annuity benefits
- Reducing the size and complexity of the estate to qualify for simplified probate proceedings
Streamlined Probate Procedures in Texas
Texas’s probate laws provide several simplified estate administration procedures for qualifying estates. Some of the most common streamlined probate options include:
- Small estate affidavits: Available to estates with a value of $75,000 or below, no real estate (except for a homestead), no unpaid debts (except those secured by the homestead), and where the decedent did not leave a will)
- Affidavit of heirship: Passes estate assets to a decedent’s heirs when the decedent died without a will, typically facilitating transfers of real estate to surviving family members who agree on inheritance
- Muniment of title: Allows the will to serve as the legal document authorizing the transfer of estate assets when a decedent left no debts (other than those secured by real estate) and when no other issues require formal probate
- Independent administration: Allows an executor or administrator to manage a decedent’s estate, pay creditors, and distribute inheritances without court supervision or approval; usually requires all beneficiaries and heirs to agree to an independent administration
Contact Our Texas Probate Attorneys
After a loved one has passed away, you may worry about the expense and time your family may incur to probate their estate. Contact Carroll Law Group, PLLC today for a free, no-obligation consultation with a knowledgeable probate lawyer to learn more about when a loved one’s will must go through probate and how our firm can assist your family with the estate administration process.