Texas Probate Lawyers: Understanding Probate Administration and Probate LitigationAug 30, 2023
Losing a loved one is never easy, and dealing with the legal process that comes after their passing can be overwhelming and confusing.
Although the probate process can be complex, it can be broken down into two types of proceedings: probate administration and probate litigation. Understanding the difference between these two can help you make informed decisions about whether you need an estate administration attorney or a litigator, and what to expect from probate in Texas.
What Is Probate?
Probate in Texas is a legal proceeding that takes place after someone passes away and either has only a will or no estate plan.
It involves distributing a deceased person's estate, assets, and property to their legal heirs or beneficiaries.
The remaining assets are then distributed to the heirs according to the will or, if there is no will, the intestacy laws of Texas. The probate process in Texas can be very technical and time-consuming, so it is recommended that you hire a probate lawyer to navigate this process.
You can avoid probate entirely if you plan in advance: contact us today to discover how!
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What Is Included in a Probate Estate in Texas?
A probate estate in Texas includes all personal and real property that a person who passed away owned at the time of their death. This can include many things, including personal effects, any real property, bank accounts, securities, insurance policies, business interests, and any other assets owned by the decedent.
If someone dies without a will, the probate estate is still created, but the distribution of assets follows the Texas intestacy laws. Some assets, such as life insurance, IRAs, or annuities, may not be part of the probate estate.
Any debts, tax liabilities, and creditor claims on the deceased estate should also be included in a probate estate to ensure settlement.
The Process For Probate and Estate Administration In Texas
The probate and estate administration process in Texas entails the following crucial steps:
1. Filing the Will: If the deceased person created a will before passing away, it must be filed with the probate court in the county where they resided.
2. Appointing an Executor: The court will appoint an executor of the estate. The executor will be responsible for settling the estate, distributing the assets, and paying any debts.
3. Identifying the Heirs: The probate court will identify the heirs of the estate. Heirs are typically determined by the will. If the deceased person didn't have a will, the inheritors are determined by Texas law.
4. Inventory of Assets: The executor must create a complete inventory and appraisal of the estate's assets. This includes real estate, personal property, bank accounts, investments, and other owned assets.
5. Paying Debt and Taxes: The executor of the estate must pay off any valid debts or taxes owed by the estate before distributing assets to heirs.
6. Asset Distribution: After all debts have been paid, the executor should distribute the remaining assets to the heirs named in the will, or if there is no will, as determined by the laws of intestacy.
The probate process in Texas can be very technical and must follow specific court procedures.
Depending on the size of an estate, probate can take anywhere from a few months to a few years. The process starts by filing a petition for probate with the probate court in the county where the decedent resided. The court will appoint an individual who is responsible for managing the estate’s assets.
This individual must pay all debts and taxes, file an inventory of assets with the court, and distribute the remaining assets to beneficiaries or heirs. The process ends with the court approving the executor’s final settlement and closing the estate.
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The Difference Between Probate Administration and Probate Ligitation
Administration in probate is the court-supervised process of collecting and distributing a deceased person's assets to their heirs. This process takes place if there is a valid will or if the person dies intestate (without a will). It typically involves filing a will, appointing an executor (if there is a will), paying outstanding debts and taxes, distributing assets according to the will or Texas law, and closing the estate.
Although administration is often seen as a routine process, it can become complicated if there are family disputes, will contests, or claims against the estate.
Probate litigation involves resolving disputes over a deceased person's estate in court. This can occur in situations where there is a will contest, a dispute over the interpretation of a will, or claims against the estate by creditors or inheritors.
Common reasons why litigation may occur include accusations of financial mismanagement of assets, improper execution of the will, undue influence over the decedent, or discrepancies over how the estate's assets should be distributed.
Litigation can be complicated, requiring extensive knowledge of Texas probate law and civil litigation procedures.
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What Is An Attorney Ad Litem?
If there are disputes or disagreements during probate proceedings, the court may appoint an attorney ad litem to represent the interests of someone who is unable to represent themselves. This can include minors, incapacitated adults, or unborn children.
An attorney ad litem has the duty to investigate the issues in the case, make recommendations to the court, and advocate for their client's best interests. An attorney ad litem must be impartial and independent, and their fees are paid by the estate.
The attorney ad litem is responsible for investigating the situation and making recommendations to the court as to what is in the best interest of the represented party.
Do You Need A Probate Attorney To Go Through Probate Court?
While it's technically feasible to go through the probate court without an attorney, it's rarely advisable. The process is intricate, and attempting to navigate it without legal guidance could result in unnecessary delays, disputes, and additional expenses. In fact, due to the complexity, some counties in Texas require representation by an attorney.
An attorney with deep knowledge in probate law can help the personal representative carry out their duties, avoid disputes, and ensure the best outcome for all parties involved.
Speak To A Probate Lawyer: Get The Right Guidance For Your Situation
Probate issues can be confusing, and it's essential to have the right legal guidance when dealing with these matters.
In Texas, it's often best to work with an experienced probate attorney who understands the intricacies of the state's probate laws. While it's not always legally required to hire a lawyer to handle your probate case, having one can help ensure that the probate process goes smoothly, and everyone's interests are protected.
Ultimately, when it comes to probate, it's always best to seek expert legal guidance to minimize stress and avoid costly errors.
Contact us today to learn more about your options and get started on your estate planning journey!