What Actually Is Probate?
Probate is the process of going to court with the will, and having the court actually find that the will is valid. At that point, the court will take the person that is named as executor, assuming if they qualify, and officially appoint them as executor. Any issues with letters testamentary, or if you have somebody that passes away without a will, you are going to do what is called an administration. You need somebody that will take care of all of the last items, and things, even letters testamentary for a will, or letters of administration if there is no will. That is giving that person the court authority they need to start handling the estate, and dealing with the assets, debts, and getting titles changed on properties, anything along that nature.
That is the process, it is getting that person appointed, and so they can handle your affairs.
What Factors Prompt A Probate To Happen?
Probate does not always have to occur. Texas is unique, in that we do have a couple of different probate proceedings. We have what I would call Traditional Probate, which is the one that everybody thinks of where you have an executor, and letters are issued. If you have somebody that passes away that does not have any outstanding debts, and you do not have a true need for administration, but you need property to pass, or title to pass on property, Texas has what is called Probated amendment of Title. This is a one-time hearing with the court, then you file all the orders, records, real property, and distribute them, and that actually serves for chain of title purposes.
We have small estate affidavits, this is if you have somebody passes away without a will, and the estate has over a certain size, and that excludes the homestead. You can do things of that nature. We also have what are called airship proceedings, in which case, you have somebody that does not have a will, and you do not need an administration, but you need to create chain of title on property. We can do it that way as well. Nevertheless, sometimes you found that even though somebody has a will, the assets have been taken care of ahead of time, or they are all what we would call non-probate assets. They would pass outside of the will, because they are contractual in nature. Therefore, we do not even have to go file for probate.
Why are There So Many Horror Stories Regarding Probate?
One of the reasons you hear horror stories about probate is even though probate is not terribly complicated, for an attorney that practices in that area, it is very involved. There are many things that the law requires you to do, especially on the front end. You need to make sure that you have complied with the various provisions. In addition, obviously, when you are talking about probate, family law, there are many emotional investments happening, because you have had a family member that has now passed away. A huge emotional element goes with this territory.
Probably the bigger reason you hear the horror stories about probate, is because somebody did not take care of their estate plan properly, and that they did not, now the surviving members are left to deal with it, and figure it out. When there is no plan in place, invariably one surviving family member thinks that another one is wrong, and we should not do it this way. We should do it another way, and so a fight erupts between the family members at this point.
What Is The Standard Timeline Of A Probate Case?
The standard timeline on a probate case can be wrapped up in three to four months. I would say that is when most of the heavy lifting is done on our level. The complicated ones drag on for years, but on average, if you do not have many complexities, six to nine months. You should have everything completed, deeds done, property distributed, tax returns filed, and you should be finished at that point.
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