Frequently Asked Questions About Texas Probate
Passing a loved one’s estate through probate can be a confusing process. If you have never gone through this responsibility before, it can be difficult to know even how to begin. Here are the answers to some of the most frequently asked questions from our clients at The Mundheim Firm.
How Is A Probate Case Started In Texas?
The hardest thing for people to understand is that a will does not do anything unless it is probated. An un-probated will is just a piece of paper. Although any interested person can initiate probate, normally the person named in the will as the executor starts the process by filing the original will and an application to probate the will with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the petition.
How Is The Executor Chosen?
If the decedent had a will, the person named in the will as the executor will serve, if eligible. If that person is unable or unwilling to serve as executor, or if there is no will, then any interested family member or person can petition the court to be the administrator of the estate.
Does The Executor Get Paid?
Texas law provides that the executor may get paid according to a compensation schedule, based on a percentage of the assets that flow into and out of the probate estate. Many times a will provides that the executor will not receive compensation, and the will overrides state law on that matter.
Could I Be Held Personally Liable For Making A Mistake As An Executor?
Being an executor is a big responsibility. The Texas Estates Code contains pages upon pages of complex legal rules and procedures that an executor must follow during the administration of the estate. There are certain deadlines that an executor must meet in filing papers with the court. If an executor violates any of these rules, they can be held personally liable for losses to the estate.
My Loved One Had A Trust. Will We Need To Go Through Probate?
In most cases, no. If your loved one’s assets are owned in the name of a trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a trust think they have it all taken care of, but time and again, family members of a recently passed loved one come to us, and we find that they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.
Why is that? Often the trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of the trust. That is why it is so important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so that the planning you do now works as planned later.
It is why we do things so much differently here at The Mundheim Firm than most other lawyers and law firms.
What Assets Are Subject To Probate?
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as those owned as “Joint Tenants with Right of Survivorship,” or as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
How Is Distribution Of The Estate Handled If There Is No Will?
If there is no will or trust, the estate will be distributed according to Texas’ laws of intestacy. Although it can be complex, and particular facts dictate each situation, a person’s estate will be distributed in roughly the following order:
- Spouse (varies by whether there are children and if both spouses are parents of those children)
- Parents (if the decedent was not survived by any children)
- Siblings (if the decedent was not survived by any children or parents)
How Long Does Probate Take?
The length of time of probate will depend on several factors. It usually takes a minimum of two to three months and can take up to two years or even longer for complex cases.
How Much Does Probate Cost?
Unlike many states, probate fees in Texas are not set by statute. At The Mundheim Firm, we do our best to handle each probate case on a flat-fee basis. These fees range from $500 where an Affidavit of Heirship can be used (does not involve the probate courts, but only works in limited situations) to upward of $7,000 to initiate a dependent administration (which also has some ongoing annual fees). There are a variety of situations with fees in between those two.
There are also court costs and filing fees, document certification and recording fees, and property appraisal fees. Preparation of estate tax returns is priced separately and carries additional fees when necessary.
Contact Our Probate Attorneys
For more information about the probate process that is specific to your situation, contact us online or call 817-857-4433 to schedule an appointment.