Depending on various factors, such as whether or not someone died with a will and/or what type of property they owned when they passed, their heirs may need to avail themselves of the probate courts. Mr. Buitron is an experienced probate attorney and has guided many local clients through what can be a complex and confusing process.
Probate is a court process that is used to facilitate or carry out an individual’s wishes as outlined in their will after their death. In most cases a person who passes with a will names an executor of their estate. The executor is the administrator of the estate and he or she is tasked with carrying out the deceased’s wishes as outlined in their will. Usually the named executor retains an attorney to help them through the probate process and act as their probate representative. In general, Texas law requires that an application to probate a will be filed within 4 years after the testator’s (the individual who drafted the will) death. After 4 years then the laws of intestacy will prevail, and the decedent’s assets will be distributed to his or her heirs based upon the formula prescribed by Texas law.
The court process, in most cases, begins with an application to probate the will being filed with the court; the application will, among other things, ask that the named executor be legally appointed by the court to act as the administrator of the deceased estate, in legal parlance the deceased is called the decedent. Once the executor has been appointed by the court as the estate’s administrator, he or she will begin the process of identifying and collecting the decedent’s belongings, money and other assets as well as the decedent’s debts. The executor will pay the estate’s debts and then distribute the assets of the decedent’s estate as directed by their will. Although the process to probate an estate can take several months, beneficiaries don’t necessarily have to wait until the process is complete to receive some of the funds. Some types of assets can be distributed to beneficiaries outside of the probate process – these are called assets of the non-probate estate and may include insurance policies, bank accounts, retirement accounts and 401K plans. These assets are transferred directly to named beneficiaries and usually only require that the beneficiary provide a death certificate.
In the vast majority of probate cases in Texas, independent administration procedures are used. In these types of cases the court appoints an Administrator, usually the executor as named in the will, and then the Administrator prepares an inventory of all of the assets as well as a list of beneficiaries and other people to whom the state owes money. After the filing of the inventory the probate process continues without the direct oversight of a probate judge. The will testator can request that his or her will be subject to Independent administration during the probate process.
In some cases, Dependent will administration procedures are used typically when there is some dispute between the beneficiaries. In these cases, the court exercise much more control and oversight over the probate process to ensure that the interests of the beneficiaries are looked out for. Due to the court’s oversight and the necessity of frequent accountings and reports, the cost of Dependent will administration can be thousands of dollars more than Independent will administration.
In cases where the decedent dies without a will (intestate) then Texas state law will determine what the decedent’s heirs are entitled to receive. Depending on the amount and type of property they own, they may need the assistance of the probate court in order to have an executor named to administer the estate to pay debts and distribute the assets of the estate according to Texas intestacy law.
At the Law Office of Steven C. Buitron, PLLC we also litigate probate disputes such as allegations of breach of fiduciary duty. Breach of fiduciary duty may be alleged by an heir or heirs of an estate in that the executor has not administered the decedent’s estate properly. Heirs will often seek an accounting of the estate so they can learn what debts have been paid on behalf of the estate and what assets have been distributed. will contests concerning allegations of diminished capacity, undue influence and misappropriation of funds.