One thing most attorneys advise a client to do is to write a will. Without a will, an individual’s final affairs are handle by probate court. Even if you think you “don’t have anything,” a will makes handling your final affairs easier for the people who will have to deal with them.
Unfortunately, most people think they have time, or they don’t really need one. In the state of Texas, a person who dies without a written will is called “intestate.” That’s a legal way of saying that someone did not leave a will or other instructions at their time of death.
What Is Probate?
Probate is the process by which the state handles the end of a person’s life from an administrative and legal standpoint. That is, all properties, assets, etc., are legally distributed to the descendants, beneficiaries, or others.
Probate also handles the payment of a deceased person’s debts, as well as their final tax return. Probate administration is the role of the Texas Probate Court and all individuals that the court hires to enable the process.
Because the decedent, or the person who died, left no instructions for the administration of their affairs, the court must step in and take over. Property and assets are distributed according to the law designating the decedent’s survivors. This can include a spouse, children, parents, or others who would rightfully inherit under Texas probate law. However, things become complicated if there are no immediate family survivors.
A person who dies without a will may unwittingly allow his or her personal property to be distributed to someone they might not have intended. A cousin, aunt, niece, or nephew, that they may not be close to, may not like, or don’t even know can inherit your property. You’ll have no say in the matter.
If an individual dies without any relatives, then the entire estate no matter how much it involves goes to the State. Texas’ probate court takes over and follows the appropriate laws for completion and distribution to the state.
Filing For A Will-Free Probate
If the deceased dies with a will, the selected executor or the deceased personal representative will generally file the probate request. The executor has four years from the date of death of the testator to file. If the executive does not file within the four-year period, then the. Laws of intestacy will govern the distribution of the assets of the estate.
Should the deceased’s will be found to be invalid, then Texas’ intestacy laws take over.
For the intestate estate, an application for probate can be made by any heir, the deceased’s spouse, a creditor, or other persons that have a property right in, or a claim against the deceased estate. This claim must be filed within four years of the date of the death of the decedent.
However, if there is property due the estate to be collected by an administrator, the court may ignore the rule. Other types of probate can be brought by one of the deceased’s relatives at any time.
Once filed, the court will be required to determine who the deceased heirs are, and who has the right to inherit the assets. The judge will then hire an attorney ad litem to act on behalf of the heirs. This attorney will investigate, and locate all persons who may have a right to inherit from the deceased estate. Even if the answer seems obvious, the court must know that there are no other family members that you are unaware of, such as children and/or grandchildren of the deceased from prior relationships.
The attorney ad litem will represent the interests of all unknown errors until they are located or until they find that there are no others. At this point, the court issues a judgment declaring heirship, identifying all individuals with the right to inherit, and in what percentages.
When the judgment declaring heirship is signed, probate can then be opened. If all the heirs are adults and agree they can give written consent for an independent administration. This will allow the administrator to handle probate without court supervision.
If the heirs are not in agreement, or if one is a minor, the estate will require a dependent administrative probate proceeding. The administrative duties remain the same, but he or she must ask for and receive court approval for each step taken during the process. This individual will also be required to secure a surety bond to protect the estate assets in case anything is done incorrectly.
Let Wendy L. Hart Help With Wills, Estate Planning and Small Estate Affidavits
Wendy L. Hart is both an experienced family law attorney as well as an estate-planning attorney. She understands what’s involved when planning your estate and can make sure your wishes are carried out properly.
If you’re faced with handling a loved one’s estate on your own, we’d be happy to help. Visit our Mansfield office at 2363 HWY 287 N, Suite 108, use our online contact form, or call us at (817) 842-2336. We’re ready to help.
