The probate process can be expensive and time-consuming, but don’t stress quite yet. Not all estates have to go through probate. So when is probate necessary in Texas?
The short answer is, if someone dies leaving assets solely in their name, then you need to probate the estate.
Is Probate Always Necessary?
No. Probate is the legal process of gathering, valuing, and distributing a deceased person’s (the decedent’s assets. If the decedent passes away either (a) without any assets or (b) with only assets that automatically transfer to someone else at death, then there’s no need for probate.
Probate is only necessary if the decedent leaves assets that do not pass down automatically to a beneficiary or co-owner, and therefore, must be handled by a probate court.
When Is Probate Necessary in Texas?
It’s necessary to probate an estate in Texas if a person dies owning assets solely in their name. Whether or not a will exists is irrelevant. In Texas, full probate is required if the estate’s value is greater than $75,000.
There are many rules and nuances to follow when calculating the value of an estate. A probate attorney can help you determine the accurate estate value, so you know which type of probate is necessary.
When Is Probate Not Necessary in Texas?
Probate in Texas is not necessary if the estate has assets that are jointly titled or have a beneficiary designation.
These are known as non-probate assets and automatically transfer to the beneficiary or co-owner once the decedent dies. Some examples of non-probate assets are life insurance policies, IRA accounts, and property owned as joint tenants with rights of survivorship.
If probate is necessary, you may be able to use a simplified version of probate called a Small Estate Affidavit rather than the full court-supervised probate. The estate may be eligible for a Small Estate Affidavit if the decedent didn’t leave a will, there’s no real estate involved, and the estate value is $75,000 or less.
Is Probate Necessary If There Is a Will?
Whether or not the decedent has a will is irrelevant to the question, Is probate necessary? A will provides instructions to the executor regarding what to do with estate property. If there are no assets, then the will is pointless.
In Texas, estate executors generally have four years from the decedent’s date of death to file a will for probate.
If the executor fails to do this, the probate court will distribute all assets according to intestate succession law. This law is a hierarchy of heirs who automatically inherit based on their relationship to the decedent.
Is Probate Necessary If There Is a Trust?
As long as the trust is properly drafted and funded, it is unlikely you will have to probate the estate. If the decedent did not transfer all of their property into the trust, then probate may be necessary to distribute any assets left in the decedent’s name.
However, keep in mind there may still be work to do as the trustee must properly administer the trust after the decedent’s death. Depending on what the trust terms say, the trustee may need to do any of the following tasks:
- Contact the beneficiaries;
- Gather and value assets;
- Notify creditors;
- Pay debts or taxes;
- Distribute any income or assets, if required.
Trustees have a fiduciary duty to the beneficiaries of the trust, so it’s important that they properly serve in their role. At The Law Offices of Kyle Robbins, PLLC, we can assist trustees with administering a trust.
Is Probate Necessary If There Are No Assets?
The whole purpose of probate is to distribute the decedent’s assets. If the decedent doesn’t own any assets solely in their name—or if all the assets automatically transfer to someone else at death—then probate is unnecessary. There’s nothing for a probate court to do.
The Probate Attorneys at The Law Offices of Kyle Robbins, PLLC, Can Help
Probate is something that most people want to avoid, but that’s not always possible. But with an experienced attorney by your side, probate doesn’t have to be a burden.
At The Law Offices of Kyle Robbins, PLLC, we’re here to help with anything from answering your questions to filing probate paperwork with the court.
We understand how emotionally stressful it is to lose a loved one. That’s why we put families first and do what we can to make the probate process as seamless and straightforward as possible.
Give us a call or contact us online to speak with a probate attorney.