What is probate?
Probate is the legal process by which a person’s property is distributed after he or she dies.
Within probate, there are different options depending on whether a person die with or without a will.
When a person dies with a will, the will does not automatically take effect. Texas law requires a judge to sign an order admitting the will to probate. Depending on the circumstances of the deceased person, administration (appointing an executing, filing an inventory, etc.) might be required. Think of paying debt, selling property, distributing money to the named beneficiaries.
Sometimes administration is not required. In this case, a person's will can be probated as a "muniment of title" which passes title from the deceased person to the person named in the will. This is a convenient process to use if the deceased person owned real property in Texas and did not have any debts. This is also what I call "junior probate" because it does not require administration. And so you know: you only have four years from a person's death to probate his or her will.
When a person dies without a will, probate becomes much more involved because his or her "heirs" must be determined by a judge. This may sound trite if everyone knows Susan and Billy are Mary's only children. But the law does not know that. There must be a "determination of heirship" first before the judge appoints someone to be in charge (called an administrator). In order to determine a person's heirs, the judge will appoint an attorney to represent a person's "unknown and unfound" heirs. Assuming no other heirs are found, the judge will then determine the person’s heirs and appoint an administrator to pay debts, sell property, and distribute assets to the determined heirs.
If this sounds complicated, that's because it is. Many people would prefer their loved ones to avoid this process by having a proper “estate plan” rather than let the government decide what to do with their property. However, because so many people die without a plan, then the government has the "probate" process to ensure a person's property is properly resolved.
As always, this is not legal advice. If you have any questions, please call our office at (940) 264-3041 or visit us at Watson Law Firm, 300 N. Wall Street, Iowa Park, Texas.
