1. What is Probate?
Probate is the action by which the assets of a deceased person are consolidated, creditors paid, and the carry over of the estate distributed to all beneficiaries. In most Texas counties, the probate process is conducted in an appointed probate division of the Circuit Court, under the legal oversight of one or more probate judges.
2. How is Probate Initiated?
Although probate can be initiated by any beneficiary or creditor, normally the individual named in the will as Personal Representative, also known as the executor in other states, starts the probate process by filing the original will with the county court and filing a Petition for Administration with the probate court. If no will exists, typically a relative of the decedent who believes they should inherit from the estate will file the Petition for Administration.
3. Who is Eligible to Serve as Personal Representative?
A trust company or bank operating in Texas, any person who resides in Texas, and a spouse or relative who is not necessarily resident in Texas are all eligible to serve as the Personal Representative. Non related individuals who are not residents in Texas are not eligible and therefore cannot serve as the Personal Representative.
4. How is the Personal Representative Chosen?
If the decedent had drafted a will, the individual named in the will as the Personal Representative shall serve, if eligible to do so. If that individual is unwilling or unable to serve as Personal Representative, the individual selected by a majority of the beneficiaries in interest of the estate shall select the Personal Representative. If no will exists,Texas law mandates that the surviving spouse may serve, or, if there is no spouse or the spouse is unwilling or unable to serve, the person selected by a majority of the beneficiaries in interest shall serve.
5. Is the Personal Representative Required by law to Retain an Attorney?
In Texas, the Personal Representative is required in almost all probate proceedings to retain a Texas probate attorney. Although the Texas probate documents are available to the public, these are of almost no practical use to a non attorney.
6. How is the Personal Representative Typically Compensated?
Texas law provides a compensation itinerary for the Personal Representative, based on a share of the assets of the probate estate.
7. Is the Family of a Deceased Person Entitled to a Portion of the Estate?
Texas law provides for a family draw for the surviving spouse and minor children of the deceased, as well as an elective share for a surviving spouse, twenty five percent of the estate, if the surviving spouse would prefer the elective share to that left under the terms of the will. A Texas resident is entitled to disinherit adult children.That being said, if it can be shown that the adult children were disinherited due to the influence of another, they could possibly have recourse through the probate court.
8. What Assets are Subject to Probate?
All assets owned by the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to probate. Assets that pass by means of a beneficiary designation, such as life insurance or personal retirement accounts, are not subject to probate as well.
In certain cases, however, assets that would typically pass by title or beneficiary designation can be subject to the probate process, especially in the case of a surviving spouse electing to take a share against the estate.
9. How is Distribution of the Estate Handled if no Will exists?
Texas law sets forth rules for the distribution of an estate if there is no existing Will.
If the surviving spouse and no direct descendants, the surviving spouse is then granted title to the entire estate.
If there is a surviving spouse with direct descendants, and all direct descendants are also descendants of the surviving spouse, the surviving spouse is entitled to the first $25,000 of the probate estate, plus one-half of the remainder of the probate estate. The descendants share in equal divisions the remainder of the estate.
If there is a surviving spouse with direct descendants, and not all direct descendants are also descendants of the surviving spouse, the surviving spouse is entitled to fifty percent of the probate estate, and the descendants of the deceased share the second half of the estate in equal shares.
If there is no surviving spouse and there are descendants, each child is entitled to an equal share, with the children of a deceased child sharing the share of their deceased parent.
If there is no living spouse and no children or other descendants,Texas law provides additional rules for distributing an estate under these circumstances.
10. Who is responsible for paying estate taxes in the state of Texas?
According to the Internal Revenue Code, the estate taxes are taken from the estate of the deceased. Depending on the exact terms of the will, the estate taxes may be paid from the probate estate only, or also from a living trust, life insurance dividends, and other personal assets passing straight to beneficiaries outside the probate estate. The estate tax return, Document 812, is filed by the Personal Representative. The Document 812 is due to be filed 6 months after the official date of death.