When someone dies, his or her estate must pass through legal process known as probate. The probate process is intended to accomplish a number of important objectives. The amount of time it takes in Texas to pass through probate will depend on a variety of factors; however, in most cases even a fairly simple estate will take a minimum of six months to make it through probate.
The main objectives of the probate process are to locate an inventory a decedent’s assets, and ensure that all creditors of the estate are paid, and finally to facilitate the legal transfer of estate assets to the intended beneficiaries or heirs of the estate. The state of Texas offers two options to formal probate. A small estate affidavit may be used if the decedent left no Last Will and Testament behind and the total value of the estate, excluding all exempt property, was less than $50,000. If the decedent did execute a Will prior to his or her death but left behind very few assets the Will may be able to be probated as a muniment of title. If either of these options are available, the probate process may take no longer than a couple of months. For estates that require formal probate, however, expect the process to take considerably longer.
There are several factors that typically determine how long the probate process will take. They value and complexity of estate assets is one factor. As a general rule, the more assets, and the more valuable those assets are, the longer the probate process will take. The reason for this is simple. As part of the probate process, the executor of the estate must locate all estate assets. Those assets must then be inventoried and valued. The more assets owned by the estate, the longer this will take.
Another significant factor in determining how long the probate process in Texas will last is whether or not the process includes any adversarial litigation. Typically, this refers to a will contest filed by a beneficiary or potential heir of the estate. In short, if someone challenges the validity of the decedent’s Will, the probate process can drag out for years. Litigation can also stem from creditors of the estate to file claims that are not approved by the executor of the estate.
It is important to remember the estate assets are typically held up during the probate process, making them unavailable to the intended beneficiaries. Because of this, probate avoidance is a very common goal when an individual is creating an estate plan. Generally, a comprehensive estate plan will work toward transferring assets out of your estate prior to your death so that there is very little left to probate when you actually die, making the probate process much simpler and quicker.
Stephen A. Mendel, Estate Planning Attorney
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