What Is Probate And Its Process?
When a loved one passes away the emotional, mental, and physical impacts can be extremely stressful. Oftentimes when dealing with a death of a close member, the question of what happens after arises. For instance, if there is or if there is not a will in place, how will that work? Another question you might ask yourself is: Who is the best probate lawyer in Dallas, TX? Questions such as those can be troubling to answer or to find the answer to can lead to additional stress, which is why we are here today to help explain the process a little better for you and help navigate you through an already emotional time.
Probate is the process that happens when a person passes away and it is the legal process that occurs when a person dies that involves the validation and administration of their will. After a family member or loved one passes away, in accordance to Texas state law their estate must be distributed among their heirs. An individual’s estate is considered anything they owned including houses, investments, cash, cars, bank accounts, and other things with monetary value. Although the probate process can be complicated, its main goal is that once someone has passed away their affairs are settled and their last will is carried out.
What Is The Probate Process?
The probate process begins when someone passes away and their assets are reviewed by a probate court. In Texas, there are specialized courts that officially recognize the death of someone and settle their debts. They also pass a final ruling after reviewing after the legitimacy of a will is proven but there can be times where a person can pass away without any documentation. The process of probate can take anywhere from 2 months to 2 years, depending on the complexity of the estate and affairs.
Probate Process With A Will:
When someone passes away with a will in place they are known as a testor. When a testor has passed it becomes the responsibility of an executor, typically a family member, to file the will with the probate court. Once a will is filed this begins the official probate process and the will is proven to be valid and accepted.
The executor is responsible for not only filing with the courts but also responsible for locating and overseeing all the assets of their deceased family member. They are also in charge of estimating the value of the estate by using methods such as date of death value or alternative valuation date put in place by the Internal Revenue Code. Another responsibility of the executor is to pay off any debts and taxes owed by the deceased using their estate. Creditors are typically allocated one year from the day of the death to file claims for the money that is owed to them, but an executor is able to reject such claims. If needed, the creditors may bring their claims that were rejected to probate court where a judge will ultimately decide whether the claim is justified or not. Executors must oversee with filing the testors final personal tax return and paying for any estate taxes remaining.
After the process of paying off creditors, filing final taxes, and locating all the assets the executor can seek authorization to officially distribute what is left of the estate to the beneficiaries listed in the will. Sometimes there can be instances where a deceased person’s estate is considered insolvent, meaning their debts outweigh their assets which is typically when the person in charge may choose not to start the probate process. Under Texas law, if an estate is approximated to be under $75,000 then probate is not required.
Probate Process Without A Will:
Under circumstances in which someone passes away and they do not have a will in place, it is considered as an intestate estate. The process for an intestate estate is where the court decides in distributing the person’s assets according to Texas law, but if the deceased does not have any assets then probate is deemed not necessary. Texas law states that if an individual passes away with no will in place then according to them your assets will be distributed to your closest relatives.
Typically due to no will being in place in the event of someone passing, the court will appoint an administrator who will act just like an executor, dealing with matters of debts and taxes. The administrator is also tasked with the responsibility of finding any heirs of the deceased, these can include surviving spouses, children, and parents. When looking for surviving family members an Application for Determination of Heirship is filed by the court and then the appointed attorney/administrator must investigate the heirship facts. Once the heirs have been located by the court, a probate judge will then decide how to distribute them among those who are living and they will also decide what assets need to be distributed. This process ends with the judge issuing a Judgment Declaring Heirship and officially listing the heirs names in the estate. Many times probating without a will can be tricky and certainly time consuming, even in cases where there is a will, but the first step in anything complicated is to completely understand the process! If you are facing probate or need help with estate planning, contact the Brandy Austin Law Firm for help.
