Probate isn’t quite as certain as death or taxes, at least in Texas. The state offers shortcuts for avoiding it under some circumstances. Even if you can’t make use of one of these options, Texas has some of the more relaxed probate laws in the country. You may not have the court looking over your shoulder every step of the way if you’re nominated in someone’s will to act as his estate’s executor.
Application for Probate
The first step of the Texas probate process involves filing the will and an application to open the estate. Go to the court in the county where the deceased last lived. Then you must wait two weeks while the court clerk posts notice at the courthouse, alerting anyone with an interest in the estate that it’s about to enter probate. If anyone wants to contest the will, he has these two weeks to act. The court will then hold a hearing to determine whether the will is valid and whether you meet all the state’s qualifications to serve as executor. Although it’s not a state law, most Texas counties require that executors be represented by an attorney.
Texas law allows you to elect an independent administration of the estate, which is much easier than a dependent administration, which requires that you get the court’s permission to take certain actions. Many wills provide for independent administration, but even if the one you’re administering doesn’t, you can ask the court to allow you to handle the estate this way. All the will’s beneficiaries must be in agreement.
Read More: What Does Independent Administration Mean in Probating a Will?
You might elect a dependent administration if you expect trouble from the beneficiaries. For example, you might have reason to believe that one or more of them won’t be happy with anything you do or any decision you make. In this case, you can choose to run everything past a judge first before you act. The probate process is largely the same in either case, but the court will first put its seal of approval on what you do every step of the way. If all beneficiaries don’t agree to an independent administration, you’ll be stuck with this option.
Regardless of which type of administration you choose, you must file an inventory of all the decedent’s probate property with the court within 90 days of taking office. You must publish a notice to the deceased’s creditors, advising them how to make a claim to the estate for the money he owed them. If he’s survived by a spouse or minor children, you must provide them with a family allowance. A judge will decide exactly how much this allowance should be, so you’ll have to involve the court for this step even if you’ve elected an independent administration. After you pay all legitimate claims, burial costs, the decedent’s taxes and expenses of the estate, you can make bequests to beneficiaries according to the terms of the will. You don’t have to account to the court first before closing the estate if you choose an independent administration.
Texas law offers a few ways of avoiding probate in some cases. You can request a muniment of title process if the deceased leaves no debts that aren’t secured by property and if Medicaid doesn’t have a claim against his estate. The court won’t appoint an executor; ownership of his property can be transferred by producing a copy of the will. If the decedent left minimal assets -- just enough to pay the family allowance and his creditors -- the court may give you permission to use a simplified small estate probate. You need only show the court where the money went and the judge will allow you to close the estate. If there’s only enough money to pay the family allowance and expenses associated with the deceased’s burial and final illness, the court can issue an order of no administration at all.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.