The probate process exists to ensure that a decedent’s heirs receive the property that they deserve. Usually, this involves the probate court’s authentication of a will and an executor fulfilling their role under the law.
While state law determines which steps a probate court must follow, the probate process in Houston is unique for each case. This is because every will nominates a different executor and names different people as heirs. In addition, those heirs may contest the language of a will or argue that the will is invalid on its face.
As a result, it can be helpful to hire an experienced probate lawyer to guide you through the probate process in Houston. Your Legacy Legal Care can help executors to fulfill their obligations under the law, work with heirs to ensure that they receive their fair share under a will or take the lead in contesting a will in open court.
When Does Probate Begin?
Probate is a natural process that occurs after a person’s death. The role of probate is to ensure that a decedent’s wishes become a reality concerning the distribution of their property. In addition, probate allows debtors to demand the fulfillment of the decedent’s debts.
Probate begins when an authorized party asks the probate court to initiate proceedings. According to Texas Estates Code § 256.003, probate must start no more than four years after the decedent’s death. Furthermore, only certain people can ask that a court begin this process. TX Estates Code § 256.051 says that an executor named in a will, or any other interested party, are the two primary people who can file a petition with the court. An interested party is an heir named in the will or a person who might stand to inherit, should a will not exist.
These parties must submit a formal application for the probate of a will. This application must include:
- Identifying information concerning the applicant
- The testator’s name, last address, and place of death
- A statement concerning the testator’s property
- Information concerning the will and witnesses to the signing
A seasoned estate planning lawyer could provide more information about the process of opening probate in Houston.
What to Expect During Probate
Probate occurs in three main phases. The first concerns the authentication of the will. The law assumes a will to be valid if it contains the testator’s signature as well as that of two witnesses. However, any interested party may contest a will through allegations that the will is a forgery or was the product of undue influence.
The second phase involves the authorization of an executor of the estate. A will may nominate an executor, or the court may appoint another party. The executor will receive letters testamentary that allow them to take temporary control of estate assets, open bank accounts, and distribute property to heirs.
The final phase concerns the actions of the executor. These people must submit regular updates to the court about how they have paid the decedent’s debts and handled the estate property. The executor must then distribute the remaining assets to the proper heirs. Once a Houston court is satisfied that these processes have concluded, it can end probate.
Why Probate Length Can Vary
While probate typically takes less than a year to finalize, it can sometimes take even longer. This depends mostly on whether anyone has plans to challenge the validity of the will or of particular bequests.
To be considered enforceable and valid, wills must meet certain standards. If someone close to the deceased claims that the will was created through coercion or while they were not of sound mind, the legal fallout can take years to sort through.
The entire probate process can also be lengthened by the existence of more “complicated” assets like business interests. These are often trickier to distribute to a family’s heirs, especially when compared to more straightforward assets like personal bank accounts. The IRS can further complicate the probate process.
How to Avoid a Lengthy, Expensive Probate Process
Anyone hoping their family can skip the lengthy and often expensive probate process should consider transferring their estate property to a trust. Revocable living trusts were created to help bypass probate entirely. Property in a trust is not subject to probate, so assets pass directly to heirs. It’s as simple as creating a trust document and transferring the property title to your trust.
You can also set up payable-upon-death designations. This allows you to name beneficiaries of the account while skipping out on probate altogether. Doing so is typically free but requires some legwork—you will want to contact your bank and brokerage firm for more information. Expect to do some paperwork and follow up on your requests. Persistence pays off when you are trying to avoid probate. Our probate lawyers also recommend getting copies of the beneficiary designations for your files.
Tax-free gifts are another great way to bypass probate court. Giving money away before you pass helps keep the expense and length of probate to a minimum. You can gift heirs up to $16,000 a year without paying a gift tax penalty. Remember, the higher the value of your assets at the time of your passing, the higher the probate costs and the longer it will likely take to complete.
How Long Does the Probate Process Take? The Bottom Line
While it may seem like the creation of a will is just asking for an expensive or time-consuming probate process, it is important not to skip this important estate planning step.
A quality plan will ideally distribute assets and property when and to whomever the deceased wishes. Only a minimum amount of a person’s estate should go to things like estate taxes and attorney’s fees. Avoiding probate is the best way to achieve such goals.
If you are feeling unsure about the current state of your estate plans, schedule an appointment with a trusted Texas probate attorney at Your Legacy Legal Care to review your options. Many of the specific questions you might have about your estate can be clarified in just a few moments’ time.
Call a Houston Attorney for Help During the Probate Process
The probate process in Houston can be confusing and time-consuming without guidance from a well-practiced attorney. Our team at Your Legacy Legal Care are well-versed in this process and can use our knowledge to help your family move through probate in a timely manner. Call today to learn more about how our team can help you.
