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Probate is the legal process by which the will of a deceased person is authenticated and administered, subject to the just debts and taxes owed at the time of death, and the property distributed according to its terms.  Probate may also involve the determination of heirs according to laws of intestate succession where an individual died without a will.

Texas Probate Procedures and Alternatives

Texas law provides several options in administering and settling the affairs of a family member, friend, or loved one, after their passing:

Small Estate Affidavit - Where an estate, excluding the homestead and other exempt property, is valued at $50,000 or less, an estate may be administered by the signing of sworn affidavits that are filed with the probate court or local court of appropriate jurisdiction.  Whether this simplified process is available and will meet the needs of a particular estate should be discussed with knowledgeable legal counsel.

Probate as a Muniment of Title - If a deceased person died leaving a  valid will, had no debts at the time of his or her death, and did not receive Medicaid benefits on or after March 1, 2005, then an application may be filed with a probate court or court of appropriate jurisdiction.  Upon a hearing of that application and approval by the court, no further action may be required for probate of such an estate.

Declaration of Heirship - Where an an individual died without leaving a will, it may be necessary to have the court determine who the heirs of a deceased person are and in what portion they are to inherit.  A declaration of heirship involves the appointment of a court appointed attorney called an "attorney ad litem" who represents the interests of unnamed or unknown heirs of the estate.  

Independent Administration - An administration of an estate in which a an independent executor or administrator pays the just debts of an estate and executes the terms of will or distributes property according to the laws of intestate succession without the requirement of direct approval and oversight of his or her appointment during the probate process.

Dependent Administration - An administration of a deceased person's estate that requires court review and approval of the acts of an administrator.

Family Settlement Agreement - Where the family and heirs of an an estate have disagreements and conflicts, a family settlement agreement may be a viable option to secure the administration and settlement of an estate.  Texas courts encourage this option because it promotes settlement and reduces potentially lengthy battles that may cause waste to an estate and unnecessary litigation.

Settling an Estate 

Even where a will exists or heirship determinations can be made, other issues may exist in settling an estate.  Some of those issues include:

Community Property v. Separate Property - A person may only dispose of at death that which he or she owns or that to which he or she has legal claim.  Therefore, where a will attempts to dispose of the property of the other spouse, it may be invalidated to the extent to which the bequest is improper or invalid.  Alternatively, where the community property estate has enhanced the separate property of a deceased spouse, the community property estate may have a right of reimbursement.  Similarly, if the separate property estate has enhanced the community property estate, the separate property estate may have a right of reimbursement. Understanding community property rules is a critical element to probate and estate administration.

Unclear heirs or designations - Even where a will names a class of people to inherit specific bequests, there may be questions concerning who the class of persons include or to what bequests a will may refer.  Similarly, a beneficiary designation on a payable on death account or right of survivorship account, may not provide clear enough guidance as to whom it has designated the benefits of the account.

Avoiding Probate 

Though Texas continues to create and enhance probate procedures and alternatives, planning to avoid probate may be a desired goal in an estate plan.  Probate may be avoided by knowing and understanding probate alternatives and receiving qualified legal advice and guidance on what best suits your planning goals and needs.  Common probate avoidance tools include:

Revocable living trusts - These kind of trusts, when properly drafted and funded, can provide privacy and create a sense of assurance because the trust assets are distributed according to the terms of the trust without the requirement of probate procedures and filings that disclose the nature of an estate.

​Payable on death and right of survivorship accounts - With a proper designated beneficiary, assets can be transferred to the desired beneficiary(ies) or trust by supplying financial institutions with proper documentation to effect the transfer.  Reviewing designations periodically with a qualified professional can provide assurance that these kind of probate alternatives achieve the desired planning goals.

The above are just a few of the options available in probating and settling the estate of a loved one.  To determine whether a particular option or whether other alternatives are available and are best for handling your loved one's estate, schedule a consultation with Texas Probate Attorney John B. Henry, III, and begin probate and estate administration with the care and guidance your case deserves.

Texas Probate Law

Procedures, Alternatives, and Settling an Estate