FAQs – Probate

Probate is the legal process to transfer the probate assets of a deceased person to the designated beneficiaries in his or her Will or if the deceased person does not have a Will, then to transfer the deceased person’s assets to his or her heirs according to Texas law.

If your spouse owned probate assets when he or she died, then yes. (probate assets are defined below). For example, if you and your spouse owned a house together when he or she passed away, then your need to probate the Will in order to transfer his or her interest in the real property to you. If you don’t probate the Will, then you will not be able to sell the house until you do. Or worse, if you pass away, and your children are the beneficiaries of your Will, then your children will need to probate your spouse’s Will (if it is not too late due to a 4 year statute of limitations) and your Will in order to transfer the real property to them.

Letters of Testamentary are issued to the Executor of the Will. The Letters of Testamentary give the Executor the authority to act on behalf of the estate of the person who died. Letters of Administration are issued to the Administrator of the decedent’s estate. An Administrator is appointed when there is no Will (although there are sometimes unique situations when an administrator is appointed when there is a Will). The Letters of Administration give the Administrator the authority to act on behalf of the decedent’s estate.

Probate assets are assets that need their title to be transferred upon your death, such as a house, car, or financial account that does not have a designated beneficiary.

Non-probate assets are assets that already have a named designated beneficiary. Some examples are bank accounts with rights of survivorship or payable on death designations, life insurance, retirement accounts, or other accounts with a designated beneficiary.

There are ways to avoid the cost of probate, which we can discuss in our initial meeting; however, it is important to know that probate in Texas is much easier and less expensive that in most other states. The articles in the newspaper that tell you to avoid probate by getting a management trust are typically from California or other states where probate is very expensive and very complex. That being said, management trusts are very useful and I would be happy to discuss the various options to avoid probate with you.

A Small Estate Affidavit is a legal procedure that can be used when a person died without a Will and has assets less than $50,000.00 and a homestead. It is a simpler, less expensive way to transfer probate assets when someone does not have a Will.

An Affidavit of Heirship is an affidavit that helps transfer real property to the legal heirs of the person who died without going through probate. However, it can only be used to transfer real property. The affidavit describes the deceased person’s family history and marital history, as well as the legal property that the deceased person owned when he or she passed away.