What is probate in Texas?
Probate in Texas is a legal proceeding used to distribute a decedent’s assets. A decedent’s assets that go through probate in Texas are distributed according to decedent’s will or Texas law. Texas is known to have a relatively simple probate process in comparison to other states. The Texas probate process is also used to settle a decedent’s debts.
Is Probate in Texas Required?
Probate is not always required in Texas. Whether or not probate is necessary depends on how decedent owned assets. Assets titled in certain ways will pass by operation of law at the decedent’s death. Some examples include:
Payable on Death (POD) Accounts
No probate is required for pay on death accounts. The named beneficiary will inherit the money in the account upon the decedent’s death.
Community Property with Rights of Survivorship
In Texas spouses can agree that some or all of their community property becomes the property of the surviving spouse upon death of the first spouse. The agreement can include community property then existing or acquired in the future. Texas Estates Code 112.051. Probate in Texas can be avoided with such an agreement.
Transfer-on-Death Deeds For Real Estate
A decedent can real estate going through probate in Texas by making a transfer-on-death or beneficiary deed for real property. The decedent records the deed while living, but the transfer of ownership only takes effect upon death. Up until the decedent’s death, the decedent can revoke the deed. The Transfer-on-Death Deed must:
- Have the essential elements and formalities of a recordable deed
- State that the transfer of the interest in real property will occur at decedent’s death
- Be recorded before the transferor’s death in the deed records in the county where the property is located.
If Decedent’s assets were held in a trust, then probate can usually be avoided in Texas. Bank accounts, real property, and other assets can be held in trust. The trust will name a trustee to take over on decedent’s death. The trustee will be responsible for transferring the assets of the trust to the beneficiaries. The trust directs how the assets are to be distributed, and to whom. The probate court does not have to be involved.
See the Assets of the Deceased for more information.
How long does it take to probate a will in Texas?
The length of time the probate process takes depends on the type of probate you have. A simple probate in Texas could take six months. However, if there are many beneficiaries, a lost will, or a will contest, probate can take years. The level of court involvement also impacts the length of time the probate will take.
Most Texas probates are independent administrations. In an “independent administration” an administrator is appointed by the court. The administrator files an inventory of the estate assets. The administrator also identifies the people who owe the estate money. Then, after the inventory is filed, the estate is administered without the probate court’s approval. A decedent can include a provision in her will for independent administration. Some benefits of an independent administration are that the executor does not have to post a bond, and does not have to get the court’s permission during the administration.
Another type of administration is “dependent administration.” A dependent administration can take much longer than an independent administration, because the Texas probate court oversees almost every step of a dependent administration. A will contest or dispute over a decedent’s assets would be a dependent administration. But litigation keeps the probate open for a much longer time period.
Muniment of Title
The “muniment of title” process is another way to transfer estate assets when decedent had a will. The muniment of title process can be used when:
- Decedent had a valid will
- Decedent had no unpaid debts, except for debts secured by real estate
- No Medicaid claims exist against the estate
How much does probate cost in Texas?
A Texas probate attorney can bill hourly for their time or charge a flat fee. But attorneys can also charge a statutory fee. In Texas, an executor is entitled to a commission of 5% of all amounts the executor actually receives or pays out in cash in the administration of the estate. Texas Estates Code 352.002. The commission may not exceed 5% of the gross fair market value of the estate subject to administration. The 5% calculation is not allowed for:
- Receiving funds that, at the time of decedent’s death,were on hand or held for decedent in a financial institution
- Collecting life insurance proceeds
- Paying out cash to an heir or legatee in that person’s capacity as an heir or legatee.
What happens if you do not probate a will in Texas?
The general rule in Texas is that a will must be submitted within four years of the decedent’s death. But if a will is not submitted within four years, then the Texas intestate succession laws will govern the distribution of decedent’s estate.