What is Probate?

Probate is a court supervised procedure for the payment of a decedent's debts and the transfer of the decedent's property to his/her heirs or beneficiaries. Probate is usually a lawsuit. Even if it may (or may not) be a simplified one it usually needs some sort of court involvment.

Probate is the legal process of making the Will public. Probate means to prove. First, the procedure establishes the validity of the Will. Is it the "last" Will or was another made later? Who are the true heirs? Is the paperwork correct and complete? Is the paperwork fraudulent? Probate answers those questions.

When must you probate the Will? Under Texas law, you have four years after the date of a persons death. After that period, probate becomes very difficult because the statute of limitations runs out. As a practical matter, it is best to start the probate within a few months of your loved ones death.

Probate is often needed. Most people do not plan and we must have an orderly (even is somewhat complex) manner in which to satisfy the decedents last wishes and distribute his or her assets to their loved ones. Probate has several variations. Each is designed to suite specific state of affairs.

The answer will be different for each person, depending on his or her circumstances and the amount of preplanning that has been done. Probate is necessary if the assets you leave require extensive paperwork to be transferred, or if you have creditors needing to be satisfied. If you prearrange to have those matters handled without court approval, then probate should not be necessary.

The ultimate goal of probate is to conclude your worldly affairs. A judge is involved to see that your wishes are carried out without any fraud or any theft. There are several different legal procedures that are all called "probate," ranging from extremely complex to fairly simple. They are:

-- "Dependent Administration." This is the most complex procedure. This is used when a person dies without a Will, owns land, securities, or bank accounts, or owes debts. It is supervised by the Court, is usually long and drawn out and is expensive, but can be avoided with proper planning.

-- "Independent Probate." This is the most common process. It is used when you have a Will that is proper and complete that appoints an Executor and asks the Judge not to supervise. It requires a public inventory of the estate’s assets.

-- "Muniment of Title." This is a shortcut process, available only when there are no debts to be paid (other than a home mortgage.) No executor is appointed; rather, the court issues an Order that validates the Will and transfers legal ownership of the assets to the heirs named in the Will.

-- "Small Estate Affidavit." This is used when there is no Will and total assets are below $50,000 plus a homestead. A court appearance is necessary, but no executor is appointed. The process is easy, but only very modest estates qualify.

You can avoid probate by making alternative arrangements. This requires you to do detailed planning. The two common methods to avoid probate are:

1) Correctly use survivorship rights on your bank accounts, stocks, home and other assets. This may call for a "community property survivorship agreement" between two spouses. If your estate is not exposed to federal estate tax (that is, it is less than $1,500,000.00 in 2004/5) then survivorship rights may be a good choice for you.

2) Correctly use a Living Trust. Probate is avoided because your trust owns your assets, and it cannot die. The trust is written to mimic the terms of your Will, as a Will substitute, so your heirs receive your estate without probate.