Probate Resource Center

Probate defined

Probate is properly defined as the Texas Court procedure by which a will is proved to be valid or invalid. However, current usage has expanded the term "Probate" to generally refer to the legal process of formally collecting assets, liquidating liabilities, paying necessary taxes, and distributing the remaining property of a deceased person ("descedent") to that person's heirs at law if no will or to one's beneficiaries provided for under a will.

The three ways property transfers at death in Texas

In Texas, when a person dies, property owned at death (i.e. real estate, cash, vehicles, life insurance owned, stocks and bonds) transfers in one or more of three ways. The first is by contract as a non-probate transfer. Property that does not go through the probate process includes the following: property held in a trust, real property held in joint tenancy with right of survivorship, gifts made before death, money in pay-on-death accounts, individual retirement accounts, and death benefits from insurance policies or other employee or government benefits controlled by a designation of beneficiary. For an in-depth review of pros and cons attributable to each type of non-probate transfer available and how such transfer works, click on Non-Probate Transfers: Avoiding Probate.

The second method of property transfer at death is under a valid will of the deceased ("testator"). A will is valid when accepted by a proper court. There are three types of wills. The first is a standard will. The second type of will is a holographic will which is simply a will made only in the testator's handwriting. Holographic wills do not require certain formalities required in a standard will. The third type of will is a nuncupative will. A nuncuptative will is simply a will made verbally just before the testator's death. Certain legal requirements apply to each type of will. The penalty for non-compliance with such requirements is that the will is not valid and that no property transfers under such will. For an in-depth review of each of the three types of Texas wills and legal requirements for each, click on Wills Explained. If you are concerned that a particular will may not be valid, click on Will Contests: challenging an application to probate a will in Texas.

The third method of property transfer at death is intestate succession. Basically, intestate succession is government's plan for property transfer at death when your will or non-probate transfers do not transfer all assets owned at death. For an in-depth review of who is entitled to one's property upon their death when they did not leave a will or otherwise provide for the transfer of ownership upon death, "heirs at law" click on Dying without a will in Texas.

Initial Probate Related Considerations

An unanticipated death can result in the need to review contents in a safe deposit box, make and pay for funeral arrangements, secure personal property and real estate, etc. Texas law provides a procedure to complete each of these matters. For a more thorough discussion of solutions to common issues faced immediately following the death of a friend or family member, click on Pre-Probate Related Considerations.

Overview of the Probate Process

Of the three methods listed above for transferring property at death, only non-probate transfers do not require some sort of estate administration to complete title transfer. However, regardless of the method of transfer of property, all property transferred at death must be accounted for in the person's estate for taxation purposes. Fortunate for Texans, the probate process is generally uncomplicated and routine.

For a decedent's property transferring by either a will and/or intestate succession, probate is typically required although certain probate shortcuts (See Probate Shortcuts) may be available in certain instances. For assets that transfer pursuant to a will, probate is initiated with the filing of the will together with an application to admit the will to probate. The will typically sets forth who is responsible for administering the deceased's estate. For assets that transfer without a will, probate begins with a request to determine heirship or by a creditor to obtain payment of a claim for amounts owed by the estate.

The probate process allows a court to formally recognize a person's death and authorize estate administration. During estate administration, the following will occur:

a will, if available, is filed and proved to be valid or invalid;
the Court appoints a person to administer the estate as either an independent or dependent administration;
a listing of all property owned by the estate and money owed to the estate is prepared and provided to the Court;
disputes over the validity of all or a portion of a will "will contests" or over who will administer the estate will be resolved by the court;
if no will was present, the court will formally determine the identity of the heirs at law;
creditors owed money will be notified and given an opportunity to seek payment;
assets remaining after payment of valid debts and costs of estate administration are paid to the beneficiaries under a will or heirs at law for any property not transferring under a will;

The probate process of estate administration can be intimidating. However, El Paso, Texas lawyers Watson & Maynez are competent in estate planning and probate matters and are eager to assist you in quickly, professionally, and economically resolving your probate needs.

Probate: Dependent vs. Independent Administration

Independent Administration is typically the preferred method of estate administration in Texas. Independent administration is "designed to free an estate of the often onerous and expensive judicial supervision which had developed under the common law system, and in its place, to permit the executor, free of judicial supervision, to effect the distribution of an estate with a minimum of cost and delay." Corpus Christi Bank & Trust v. Alice Nat'l Bank, 444 s.w.2d 632 (Tex. 1969). Independent administration is permitted upon one of the following:

When the descedent's will requires independent administration;
When an executor is provided for under a will and all devisees and probate court agree to allow independent administration; or
When no valid will exists and heirs at law and probate court agree to allow independent administration.

Dependent administration is required when one of the above is not present or when the executor appointed specifically requests dependent administration. Dependent administration may be requested when the deceased's estate is insolvent as well as for other reasons. Dependent administration protects the person administering the estate since it requires court approval for various matters that otherwise take place without court approval. However, additional court approval results in additional costs to the estate. Watson & Maynez are competent in such matters and is eager to consult with you regarding your West Texas independent or dependent estate administration issues.

Executors & Administrators

Persons disqualified from serving

Certain persons are disqualified from serving as an executor or administrator (the executor is the person who serves pursuant to decedent's wishes in a will and an administrator is the person otherwise appointed by the Probate Court). Persons disqualified include the following: incapacitated persons, persons convicted of a felony in a U.S. court, non-residents of Texas without a resident agent appointed to accept service of process, a corporation not authorized to act as a fiduciary, or any other person that the Probate Court finds unsuitable. Many times, bankruptcy will be looked upon disfavorably as will evidence of current drug or alcohol abuse.

Priority to serve

Of those persons eligible to serve as executor or administrator, priority is given in the following order: to the person named as executor in the will of the deceased, surviving spouse, principal beneficiary, next of kin, creditor, person of good character who applies for the position, and finally, any other person not disqualified.

Powers

Independent Executors and administrators as well as dependent executors and administrators generally retain the power to incur expense, expend funds, sue, operate a business, settle claims, and otherwise conduct all lawful acts necessary for the administration of the estate. However, a dependent executor or administrator must submit application to and obtain approval from the Probate Court in many instances.

Liability

An executor under a will and an administrator when no will is present are personally liable for any acts performed without court authority, for conversion, waste or mismanagement of assets, hiring, or renting property without approval.

Removal

An executor or administrator can be removed by the Court overseeing the estate administration. Without notice, the Court, on its own motion, or upon application of a person with an interest in the estate, can remove an executor or administrator who: 1) neglects to qualify in the manner and time required by law; 2) fails to return an inventory and list of claims within 90 days of qualification; 3) fails to provide a bond when required; 4) is absent from Texas for an extended time without court approval; 5) can't be served with notices; and 6) has misapplied, embezzled, or removed from the state, all or any part of the property committed to that person's care. The Court, while not required to provide notice to the executor or administrator in advance, must find violation by clear and convincing evidence given under oath.

An executor or administrator, after notice, may be removed following the Court's own motion or application of a person with an interest in the estate. The court must find one of the following: 1) that sufficient grounds exist to support a belief that the executor or administrator misapplied, embezzled, or removed from the state any property committed to his care, 2) he fails to return any account which is required by law to be made; 3) he fails to obey an order of the Court; 4) he is proven to have been guilty of gross misconduct or mismanagement in the performance of his duties; 5) he becomes incapacitated or is sentenced to the penitentiary; he fails to make a final settlement within 3 years following the grant of letters; 6) fails to approve or deny a claim within 30 days of receipt; 7) he purchases a claim against the estate; or 8) he fails to provide certain notices required by the probate code.

Commission

A valid will typically sets forth whether and how much compensation an executor receives for that person's services. If the will is silent or if there is no will, Texas law typically allows for the lesser of 5% of the value of the estate or 5% of all sums received in cash or paid out in cash yet excluding funds which were held or on hand at the time of death in a financial institution or brokerage firm, including cash or a cash equivalent held in a checking account, savings account, certificate of deposit, or money market account nor for collecting life insurance proceeds. However, upon motion, a court may authorize additional commission for managing a farm, factory, other business, or when the calculated commission is unreasonably low.

Information provided in this website is a courtesy, should not be relied on, does not create an attorney-client relationship, and is not a substitute for actual legal advice from an attorney you have retained. To schedule an initial consultation with Watson & Maynez, P.C. to discuss your matter and mutually determine if retention is appropriate, call today.

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