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What could happen if your parents’ estate goes to probate?

You may have heard of the head-spinning process known as probate, but you may not know what the process actually looks like, or why it is difficult in the first place.

In Texas, probate, or the settling of someone’s estate by a court-appointed executor, can be simplified if the estate falls under a certain tax bracket. For others the process can involve extensive court proceedings that can last for years.

When probate can be avoided

If you are the executor who handles the estate and you can prove that the estate’s debts have been paid by the value of the estate leaving no significant debt, a court will probably settle the estate easily or with a simple affidavit.

When probate is required

If your relative dies without a will and a clear and legal estate plan with significant debts or assets, probate is probably inevitable. Medicaid or other social services could complicate an estate.

What will probate look like?

There will be a lot of paperwork. Even with a will, a court may need several months to settle your loved one’s affairs. Most probate cases open with someone in possession of a will filing it with a probate court. This could be a family lawyer, the appointed executor or surviving spouse using online or in-office resources. This can be combined with the process to file a death certificate.

After filing, the process will probably look like the following:

  • A judge will declare the will valid or invalid at a court hearing with notified heirs present. (If there is no will, the heirs may be summoned to court.) Heirs may voice any concerns related to the estate or the nominated executor here.
  • The judge will appoint an executor. This may be the person nominated in the will, surviving spouse or legal heir. The person may decline. The appointee and heirs will need to sign documents confirming their position.
  • The executor begins their search for any undocumented debts or assets, keeping up with any necessary mortgage, car, insurance, etc. debt payments at the discretion of a probate judge or lawyer. The executor will notify creditors of the person’s death and prepare tax returns.
  • After debts have been paid, the executor files any necessary paperwork and begins to distribute assets to the beneficiaries. This usually involves authorizing checks, transferring titles or deeds and settling up trusts for minors. Without a will, the assets will pass to the people the court determines are the appropriate heirs.

Once debts are paid, accounts are closed, property is distributed, tax returns are filed and the court declares an executor’s duties are completed, the estate will be settled. Hopefully by researching the process and understanding the status of your parents’ estate, you can reduce anxiety and fears associated with probate.

It is not a clear-cut process, but there are laws in place to guide and protect the estate, the executor, and anyone who inherits from the estate. With patience and paperwork, the estate will be settled.

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  • Richard P. Johnson is Board certified Texas Board of Legal Specialization Estate Planning And Probate
  • Wealth Counsel
  • The College of the State Bar Of Texas Professionalism Through Education
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