Black's Law Dictionary defines "probate" as follows:
The Texas Court procedure by which a will is proved to be valid or invalid; though in current usage this term has been expanded to generally refer to the legal process wherein the estate of a decedent is administered. Generally, the Texas probate process involves collecting a decedent's assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. These activities are carried out by the executor or administrator of the estate, usually under the supervision of the probate court or other court of appropriate jurisdiction and in most cases with the guidance of a Dallas, Fort Worth or Houston probate lawyer. Black's Law Dictionary, 6th Ed.
The probate administration of a Decedent's estate involves:
- Identifying the Estate Assets
- Paying any debts owed by the Decedent at the time of death
- Distributing the remaining assets to the Decedent's heirs or beneficiaries under a Will
In addition, the administration of the Estate involves:
- Paying any taxes that may be owed as a result of the death
- Pursing any claims against third parties that are owed to the Estate
- Determining the identity of the Decedent's heirs if he died without leaving a Will
The process of administering a Decedent's estate has become very complex in recent years. As a result, Texas attorneys who specialized in other areas once attempted to assist clients with these matters.
Today, however, clients needing assistance in administering the estate of a friend or family member should seek the advice of a Texas probate attorney whose practice is devoted to this area of law.
Initiating the probate process is generally very easy in Texas. In most cases, the process begins with simply filing documents with the probate court to get the process started. From there, the steps to have an executor appointed and to have the estate opened will be easy to navigate if you are represented by a Texas probate attorney who is knowledgeable in this area.
However, before the process is initiated, you and your lawyer should discuss the various types of probate and any alternatives that may exist. By understanding all of your options, you may be able to avoid some part or all of the probate process, and you are likely able to save time and money if your case does not require a full probate administration.
Texas offers essentially three (3) mechanisms for administering an estate:
- Independent Administration
- Dependent Administration
- Muniment of Title
Each of these methods of probate has very distinct characteristics, very specific applications under the law, and in many cases are very unique to Texas. Understanding the types of probate will aid you in understanding which method(s) is/are available to you and which one will accomplish your goals in the best manner.
In Texas, an executor has very specifically defined responsibilities to fulfill in the course of administering a friend or family member's estate. Before accepting the responsibility of becoming an executor, one should fully understand those responsibilities because failure to fulfill those obligations may subject the executor to being sued by the heirs or beneficiaries of the Decedent's estate. Proper advice regarding these responsibilities is essential when serving as the executor.
D. Tax Issues
Most clients who need help with a probate matter have questions regarding the tax ramifications related to the probate case. These questions may include:
- Issues related to the Decedent's final tax return
- The Estate tax return
- Income tax returns for the Estate
- Income tax consequences to the beneficiaries of the Estate
These issues can have far-reaching and complex implications. However, an executor (generally with the assistance of his/her attorney) has the responsibility of making sure that all of the appropriate tax returns are filed for the Estate.
Although many attorneys do not fully understand the tax implications related to Estates, it is important that:
- An Executor understand what is required and
- An Executor retain an attorney who has the appropriate knowledge of these matters to assist them in fulfilling their tax-related duties to the Estate
In some instances, an estate does not contain the level of assets or other issues requiring the formal probate of the estate to transfer the Decedent's assets to his heirs. In those relatively few instances, Texas law has laid out a few alternatives to the formal method of probate. Although they may not be available in all cases, the alternative methods can generally reduce the amount of time and expense involved in navigating the probate process.
In recent years and in many states around the country, people are bombarded with messages that they need to avoid probate at all costs. As a result, various tools have been developed to assist clients with this goal.
In many states, the probate process is costly and time-consuming, which has necessitated some of the efforts to avoid probate.
Although the probate process in Texas is easy and uncomplicated, a couple of mechanisms exist which will assist a client in avoiding probate. Specifically, the:
provide the ability to avoid probate. Inasmuch as many pitfalls exist, anyone considering these avenues should fully understand them.