March 31, 2020 | Share
7 Facts to Know Before Starting the Probate Process in Texas
If you have recently lost a loved one and are preparing to go through the probate process, there is a lot you need to know. While probate can be confusing, it does not have to be scary, and understanding what you can expect during the process will help alleviate some of the stress involved.
Here are seven facts to know if you are preparing for probate in Texas:
1. Heirs and Beneficiaries are Different.
Although the terms “heir” and “beneficiary” are often used interchangeably, they have different meanings. An heir is someone who is entitled to a share of a person’s estate under the law of intestate succession, while a beneficiary is someone who is named in a will, trust, or other transfer document. If someone leaves his or her entire estate to named beneficiaries, the beneficiaries’ rights take precedence over those of the statutory heirs.
2. Personal Representatives Have Legal Obligations.
Serving as a personal representative entails certain legal responsibilities, and failure to meet these responsibilities can lead to personal liability. For this reason, family members named as personal representatives will often hire attorneys to guide them through the process.
3. Not All Asset Transfer Through Probate.
Probate is required any time a person dies with or without a will. But, even if your loved one left a will, there is still a good chance that all or a portion of his or her assets will transfer outside of the probate process. For example, trust assets transfer outside of probate, and there are a variety of other types of beneficiary designations that can result in non-probate transfers as well.
4. Probate Involves More than Distribution of Assets.
While distributing assets is often an important component of the probate process, probate is not just about distribution of assets. Establishing guardianship for minor children, paying debts and a variety of other issues must also typically be resolved through probate.
5. Creditors Get Paid Before Heirs and Beneficiaries.
Speaking of debts, in probate, creditors get paid before heirs and beneficiaries. Personal representatives must provide notice to certain creditors, and all creditors must be given the opportunity to assert their rights before distribution of the decedent’s estate.
6. There are Different Forms of Probate.
In Texas, there are two primary forms of probate: independent administration and court-supervised dependent administration. However, there are also simplified procedures for probating for smaller estates, and understanding which option (or options) you have available is critical to minimizing the costs involved.
7. Any Interested Party Can Challenge the Terms of a Decedent’s Will.
Finally, if you believe your loved one’s will should not be enforced, or if you reach an impasse regarding the interpretation of your loved one’s will, you have the right to bring a claim in court. While litigation is sometimes necessary, more often, family members and other interested parties will be able to resolve their differences amicably with the help of their respective attorneys.
Due to the complexities involved, we strongly advise anyone dealing with probate to seek experienced legal representation. If you are preparing for probate in Texas and would like to speak with a lawyer, you can contact an attorney online for a free consultation.
Categories: Estate Planning