Probate is essentially the legal process that occurs after a person dies that wraps up their legal affairs with respect to the disposition of their property and payment of their debts. During the probate process, the decedent’s assets will be identified and gathered and debts will be paid from funds when available including funeral expenses and expenses of a last sickness. The steps and actions that are taken depend on several factors regarding the decedent including the type and location of their property and any legal documents they have executed as they pertain to their estate. The probate process exists to help ensure the orderly and legally recognized transfer of the decedent’s property to those persons entitled to receive such property. The decedent may designate the persons or entities that are to receive their property by executing a will. If a decedent has no will, there are statutes in Texas that determine who is an heir of the decedent and what property they are entitled to receive.
Decedent’s executing a will
If a decedent has properly executed a will, their estate can be probated in what is known as an “independent administration”. If the probate proceeding is of this type, the expenses tend to be less and overall has less involvement with the probate court. The will in such instances will name an executor who has broad powers to act without having to obtain court approval. For example, an independent executor may pay debts and expenses, sell or convey property, and make various distributions without having to obtain court approval.
Even if a person has executed a valid will, it may not be necessary for someone to act as an executor. If the estate owes no debts, the will can be probated in what is known as a “muniment of title”. In such cases, the will and the court order admitting the will to probate are recorded in the county land records and will serve to transfer the property to the persons as intended by the decedent.
Decedents having no will
If a person dies without having executed a valid will, they are said to have died “ intestate” and their property will be transferred to heirs that are listed pursuant to statute. When a person dies without a will, the probate process is known as a ‘dependent administration”. Dependent administration typically costs more and takes longer to complete than an independent administration. The reason this process takes longer and costs more is because almost every action taken must be approved by the court. In addition, the court must appoint a person who is interested and qualified to act as the estate administrator. The dependent administration process is very structured and many requests filed with the court include the filing of a report for review.
However, if a person dies without a will, sometimes it is not necessary to conduct a dependent administration. The decedent’s property in some instances can be transferred to the heirs by what is known as a “ statutory heirship” proceeding. When it is possible to use this option, the heirs may be able to save both time and money.
If you need to speak with an estate attorney and live in the Frisco, Plano, Carrollton, The Colony, Little Elm, McKinney, Oak Point, Cross Roads, Prosper, Gunter, and Celina and need a lawyer or professional legal advice, feel free to contact us.