San Antonio Probate Attorneys
Protecting You & Your Rights Throughout Probate
When an individual passes away (becomes a “decedent”), the probate court steps in to ensure their last wishes are fulfilled, and their estate is distributed properly. If you find yourself named an executor or personal representative during a probate case, you may be unsure of what steps to take next.
At The Law Office of Derek S. Ritchie, PLLC, our San Antonio probate lawyers will work with you to navigate the probate process and ensure your rights remain protected throughout.
Common Terms in Probate
Understanding the following terms during probate can make the process easier:
- Testator: An individual who drafts and signs (executes) a will;
- Beneficiary: An individual named by a testator to receive property in a will;
- Executor: An individual named by the testator to help the probate court execute their will;
- Intestate: A person who dies without drafting a will. Their estate is then distributed according to their state’s intestacy laws;
- Heir: A person with a personal connection to a testator who may have the right to property or executor status if a will is invalid, they fail to appoint an executor, or in cases of intestacy;
- Creditor: A person or organization who loans money;
- Debtor: A person or organization who owes money to a creditor.
With those terms defined, let’s look at how probate works in Texas.
The Role of the Probate Court
After a person dies, their estate goes into probate. A probate court is then responsible for ensuring the decedent’s estate is properly distributed according to either their will (if they had one) or state intestacy laws (if no will was present).
If a will exists, the court will attempt to verify its legitimacy. To be valid in Texas, at least two witnesses must watch a testator either sign a will or direct someone to do so on their behalf and then sign the will themselves. The court will attempt to work with witnesses or other individuals involved in the will execution process (such as a public notary if the will was notarized) to verify its validity.
At this stage, the county court clerk will post a notice stating a probate application was filed for the decedent. At this point, anyone who wishes to contest the validity of the will can come forward to do so.
After determining the will is valid to the best of its knowledge, the probate court will see if the testator appointed an executor. If so, the court will work with that individual to handle the probate process. If the will fails to appoint an executor, the court will do so on the testator’s behalf, usually assigning an individual like an heir who has legal rights to the testator’s estate under intestacy laws.
Independent & Dependent Estate Administration in TX Probates
In Texas, a testator can specify one of two ways for an executor to distribute their estate:
- Independent administration. If an executor uses independent administration, they don’t have to interface with the court frequently throughout probate. Additionally, they don’t have to post bonds guaranteeing they’ll compensate beneficiaries for any losses incurred if they act carelessly or dishonestly. Independent administration often makes probate significantly less time-intensive and costly.
- Dependent administration. If an executor uses dependent administration, they must interact with the court consistently throughout probate. Additionally, they need to take out a bond on property for the estate.
As a rule of thumb, the bigger an estate is or the more valuable property a testator possesses, the better an idea it may be to use dependent administration. Working with the court more closely can help ensure the estate gets properly distributed.
The Probate Process in Texas
After the court validates the will, the executor or administrator appointed to the estate must take the following steps:
- Inventory assets. The executor must appraise and inventory all assets in the testator’s estate to determine their value. After completing these steps, they must provide the court with that inventory. The executor has 90 days to complete the process from start to finish. Various factors, such as whether any beneficiaries may disagree with the terms of the will, can increase the difficulty of inventorying an estate.
- Identifying and notifying beneficiaries. After cataloging the estate, the executor must identify individuals named as beneficiaries in the will.
- Identifying and notifying creditors. Before distributing the estate among beneficiaries, the executor must take care of any debts the testator possessed. This may involve selling property originally owed to beneficiaries.
- Resolving disputes. Before the executor can finish probate, they must handle any remaining disputes among beneficiaries or others who lay claim to the estate concerning the validity of the will.
- Finalizing asset distribution. Once any disputes are handled and creditors are paid, the executor and probate court can award property to beneficiaries as stated in the will.
Probate can be a long, complex process, and having an experienced probate attorney at your side can help ensure you handle probate in an effective, stress-free manner. At The Law Office of Derek S. Ritchie, PLLC, our San Antonio probate attorneys will help you navigate the probate process.