What Is Probate And How Does It Work?

Posted on: May 20th, 2012
Probate is the legal process of transferring title of the Decedent’s (the one who passed away) assets from the Decedent, to the heirs or beneficiaries. Probate is necessary because in order to transfer assets a signature is ordinarily required. However, when someone has passed away they are no longer able to sign. Therefore, the court appoints an executor (a person chose by the Decedent) or an Administrator (a person chosen by the Court) to provide that signature and “stand in the shoes” of the Decedent.

     In Texas, the probate process is relatively easy. This is because in most cases, the Court will order Independent Administration. This means there is limited court involvement and the Executor is free to do his or her job without being under close supervision of the Court. In an Independent Administration, there is one, very short, court hearing and minimal paperwork that will need to be filed with the Court.

At the hearing the Judge will do three things:

1. Admit the Will to Probate – This means the Judge will hear testimony from the Witness, who is ordinarily, but does not have to be, the Executor named in the Will. This testimony deals with the facts of the Decedent’s death, facts about the Will such as proper execution and whether or not the Decedent named an Executor. Once the Judge admits the Will to probate, that means this Will is the one that will be followed by the Executor and the Court.

2. Appoint an Executor/Administrator – This is the person who will carry out the Decedent’s directions as they are written in the Will. The Executor has three main jobs:

  • Collect or account for all of the assets in the Decedent’s estate;
  • Pay any outstanding debts owed by the Decedent; and
  • Distribute the remainder of the assets according to the directions in the Decedent’s Will.

There are other miscellaneous jobs that the Executor that may, or may not, need to do depending on the specific needs and assets. For example, the Executor may need to:

  • Open a bank account in the name of the Estate if there is money that will be paid to the Decedent;
  • Locate heirs;
  • Resolve disputes;
  • File tax returns (final 1040, a 1041 for money paid to the Decedent’s estate, and a 706 for estate tax);
  • Close accounts (bank, paypal, ebay, facebook, etc.); and
  • Determine Estate assets and values.

3. Issue Letters Testamentary/Administration – These letters are the official documents issued by the Court naming the Executor and declaring that he or she has been appointed by the Court to handle the Decedent’s affairs and transfer assets accordingly.

     It is important to point out that only “probate assets” will need to go through the probate process. Therefore, if the Decedent died owning no assets that need to be transferred through the change of a title, then probate is not necessary. This is commonly the case when a person did not own a home and all of their assets passed by right of survivorship and/or beneficiary designation. In my next post I will discuss various ways to avoid probate.

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