For many individuals across Texas and beyond, the probate process is full of mystery. Probate law may be complex and confusing, but incorrect information also circulates about what actually happens during probate, leading to numerous and widespread misconceptions.
If you’ve ever wondered how you can avoid probate, whether you need a will, or if a lawyer is necessary, this article is for you. Keep reading to discover:
- If a will can help you avoid probate, and what happens when a person dies without a will.
- Whether or not you should hire a lawyer for probate, and when a lawyer is required.
- Who is or can be involved in the probate process, and what each person’s role entails.
What Are The Most Common Misconceptions About Probate?
Here are 10 of the most common misconceptions that people have about the probate process in Texas, and the truth behind them:
- Every Estate Must Go Through Probate: Many people believe that every deceased person's estate must go through the probate process. In reality, small estates, or those with certain types of assets (like joint tenancies or assets with named beneficiaries), might bypass probate entirely or qualify for a simplified process.
- Having a Will Avoids Probate: Having a will almost always guarantees having to go through the probate process. A will is a guide for the probate process. To avoid probate, you would need to utilize other estate planning tools, such as living trusts.
- Having a Will Automatically Transfers my Property: If someone left a will, it must be probated (i.e. you must prove that it is a legally executed will). You only have four years from the date of death to probate it; otherwise, the court may have to transfer the property through intestacy laws.
- The State Will Take Everything if There Is No Will: There are intestacy laws (the rules for people who die without a will) that dictate who the deceased's assets will go to. This is usually close relatives and NOT the state. Only in rare cases where there are no eligible relatives will assets escheat, or revert, to the state.
- Only Families Fight in Probate: Disputes can arise among family members, but conflicts can also emerge between creditors, business partners, or anyone else who has a claim against the estate.
- You Don't Need a Lawyer for Probate: Probate can be a complex process, especially in cases where the estate is large or there might be disputes, so it is wise to consult with an attorney. Additionally, if an administrator or executor is going to be appointed, a lawyer is required since that position is one of a fiduciary capacity.
- Probate is Only About Distributing Assets: While distribution of the deceased's assets is a significant part of probate, the process also involves paying off debts and taxes, ensuring that the deceased's wishes are honored, and possibly resolving disputes.
- All Assets Go Through Probate: Not all assets are subject to probate. Assets like life insurance policies, retirement accounts with named beneficiaries, or properties held in joint tenancy will generally bypass probate (unless those beneficiaries are minors or are pre-deceased).
- Probate is a Private Process: Probate records are public, so anyone wanting to know what you left and to whom will know by doing a simple search on public access websites. If privacy is a concern for you, there are estate planning strategies that can keep details private.
- The Oldest Child or Closest Relative Automatically Becomes the Executor: While many people assume this, the executor (or personal representative) is usually named in the will. If there is no will, or if the named executor is unwilling or unable to serve, the court will appoint someone. This could be a relative, a close friend, or even a professional.
Who Is Involved In The Probate Process?
There are many different individuals and professionals involved in the probate process, including:
- Decedent: This is the person who has passed away. Their estate, which includes all assets and liabilities, is the subject of the probate process.
- Executor or Personal Representative: This individual (or sometimes an institution) is responsible for overseeing the probate process and ensuring that the decedent's wishes, as laid out in their will, are carried out. If the decedent left a will, they usually name their chosen executor in it. If there is no will, or if the named executor cannot serve or has already passed away, the probate court will appoint someone, often called an "administrator."
- Probate Court and Judge: The probate court oversees the entire process, ensuring that everything is done according to the law. The judge confirms the validity of the will, approves the actions of the executor, and settles disputes if they arise.
- Individuals or Charities: These are individuals or entities named in the decedent's will who are set to receive assets or a portion of the estate. If there is no will, beneficiaries will be determined by the state's intestacy laws.
- Heirs-at-law: If there is no will, these are the individuals who, according to state law, are eligible to receive assets from the decedent's estate. This typically includes close relatives like spouses, children, parents, siblings, and possibly others, depending on the decedent’s family history.
- Attorney: Often, the executor or personal representative must hire an attorney to guide them through the probate process, ensuring that all legal requirements are met. This attorney typically focuses on probate or estate law.
- Creditors: These are entities or individuals to whom the decedent owed money at the time of their death. They have a right to file claims against the estate to recover what they are owed, and the executor must notify them of the decedent's passing.
- Appraisers or Valuators: If the value of certain assets in the estate is unclear, professionals might be hired to appraise or determine their value. This can be crucial both for distributing assets and for tax purposes.
- Tax Professionals: They ensure that any estate or inheritance taxes owed are correctly calculated and paid.
- Guardian or Conservator: If the decedent had minor children or dependents, and there is no surviving parent or previously appointed guardian, the probate court might need to appoint someone to care for these dependents.
- Witnesses: If the validity of the will is in question, witnesses who were present when the will was signed might be called upon to testify in court.
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