What is probate?

Probate is a legal process by which a court oversees the administration of a decedent's assets and liabilities either with or without a will.

This process can take a matter of months or several years to be completed.

Where does probate occur?

Your Estate is probated in a Court of the county and state in which you lived at the time of your death. If you own any property in another state, another ancillary probate proceeding may be necessary in that state and county.

What assets are subject to probate administration?

All assets owned by you in your own name, not in joint tenancy with right of survivorship, in trust or with a beneficiary designation, are subject to probate administration when you die.

How is the Will probated?

The following is a VERY simplified outline the general probate process:

  • The original of the Will is filed with the Court along with the appropriate application.
  • After filing of the Application for Probate, the Clerks' office posts a notice in the courthouse. Generally, after 10 days, a hearing can be held to admit the will and appoint the Executor (or Administrator if there is no Will). Executors and Administrators are commonly referred to as Personal Representatives, so from this point forward in our outline, we will refer to Will Executors and Administrators simply as Personal Representatives.
  • Generally, within 30 days from the date the executor qualifies, a notice to creditors is filed in a local newspaper. The Personal Representative can then give creditors notice to file claims within four months from the date of receipt of notice from the Personal Representative. Creditors of the Estate may or may not elect to file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
  • During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative locates all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition, and to collect income for the Estate. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc., unless court authority is needed.
  • When the four month Claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative can proceed with distribution of all remaining assets to the beneficiaries/heirs. If the Personal Representative is serving as a Dependant Administrator the Personal Representative must file a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, remaining debts and the proposed plan for distribution.
  • If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists, and distributes to the will beneficiaries or heirs.

The minimum amount of time that the probate process can be completed is approximately six months, but it normally takes longer. Reasons for delays can include Will contests, pending estate litigation following rejected claims, property cannot be sold, one or more claimants not being notified in the original four-month Claim period so they end up having to be re-noticed, etc. This is one of the main reasons why it is important to have a good probate attorney; it reduces the chances of complications during the probate process and a good Probate attorney can help streamline this process.

Is there any way to avoid probate?

Yes, most states have a summary procedure whereby probate is avoided if the value of your assets is less than a certain value. For example, in Texas, if your assets amount to less than $50,000, exclusive of homestead, and you die without a will, probate can be accomplished by filing a Small Estates Affidavit and a hearing is not necessary. It's in your best interest to consult with an attorney seasoned in Estate administration to minimize the chance of legal complications in trying to avoid probate.