Probate FAQs

One of the primary purposes of creating an estate plan is to ensure that your estate assets will be distributed according to your wishes after your death. Creating a roadmap for the distribution of your assets, however, is only one part of a comprehensive estate plan. Like most people, you will likely include additional components in your plan as well as incorporate additional estate planning tools and strategies into those components. Probate avoidance strategies, for example, are frequently included in a well thought out estate plan. If you have never been directly involved in the probate of an estate before, however, you probably don’t know why avoiding probate is so desirable nor what tools and strategies you might use to achieve a probate avoidance objective.  To help you better understand the probate process as well as more about probate avoidance, we have answered some frequently asked questions on the topics. If you have additional questions or concerns, please feel free to contact our office to schedule an appointment.

• • What is probate and why is it required?

• • When a person dies, he or she leaves behind an estate that is made up of all assets owned by the decedent at the time of death. Ownership of those assets must eventually be transferred to the beneficiaries and/or heirs of the estate. To ensure that happens in a timely manner, most estates ae required to go through the legal process known as probate.

• • Do all estates go through probate?

• • Most estates are required to go through some type of probate.  Small estates with uncomplicated assets may qualify to use an alternative for formal probate which is offered in most states, including Texas. Estates that do not qualify to use a small estate alternative must go through formal probate.

• • Are all assets part of the probate process?

• • No.  Some assets bypass probate altogether, meaning they can be distributed to the intended beneficiaries shortly after the decedent’s death instead of having to wait until the end of the probate process. Examples of no-probate assets include:

    • Assets held in a trust
    • Certain types of jointly held property
    • Life insurance proceeds
    • Funds held in an account designated as “payable on death(POD)” or “transfer on death (TOD)”
    • Certain funds held in retirement or pension accounts

• • Who oversees the probate of an estate?

• • If the decedent executed a Last Will and Testament prior to his/her death, the person named as Executor in that Will is the person who will oversee the probate of the estate. If the decedent died without a Will, or “intestate,” any competent adult may volunteer to be the Personal Representative of the estate and oversee the probate process. If no one volunteers, or the appointed Executor cannot serve, the judge will appoint someone to the position.

• • Do you need an attorney to help during probate?

• • There is no legal requirement that an Executor/Personal Representative hire an attorney to help during the probate process; however, most do retain the services of an experienced estate planning attorney because of the legal issues involved in probating an estate.

• • What are some common steps during probate?

• • Among the most common steps in the probate process are:

    • Identifying, securing, and valuing estate assets
    • Opening probate in the county where the decedent was a resident at the time of death.
    • Identifying and locating heirs if the decedent died intestate.
    • Notifying creditors that probate is underway.
    • Reviewing creditor claims and approving or denying each claim.
    • Litigating any claims against the estate.
    • Calculating and paying any state and/or federal tax due.
    • Transferring the remaining assets to the intended beneficiaries/heirs of the estate.

• • What is the difference between a testate and an intestate estate?

• • A “testate” estate is one in which the decedent left behind a valid Will. An “intestate” estate is one where the decedent failed to leave behind a Will. In a testate estate, the terms of the Will determine how the estate assets are distributed. In an intestate estate, the state intestate succession laws determine how estate assets are distributed.

• • What happens if someone contests the Will?

• • In most states, any “interested” person (usually beneficiaries, heirs, or even creditors) may contest the validity of the Will submitted for probate. If a Will contest is filed, the contest must be litigated before probate can resume because the outcome determines whether a Will or the state intestate succession laws will determine how the estate assets are distributed.

• • Why is probate avoidance a common estate planning objective?

• • The probate of even a relatively simple estate will typically take several months to complete because probate cannot be wrapped up until the statutory time frame within which creditors may files claims has passed. Many estates take considerably longer to probate, particularly if a Will contest is filed. Beneficiaries and heirs must wait until the end of the probate process to receive their intended assets, making the length of the probate process a common reason to avoid the process when possible. In addition, probate can be costly. Everyone involved may be entitled to a fee, including the Executor, attorney, appraisers and accountant. For these reasons, people often choose to include probate avoidance tools and strategies in their estate plan.