The Probate Process Explained.

While probate is best avoided, sometimes it is necessary. Understanding what probate is and how it works can help ensure a smoother, faster transfer of assets after a loved one dies and help you decide whether you want to plan for your loved ones to avoid probate after your death. 

What Is Probate?

Probate is the judicial process in which a Will is determined to be valid and not revoked. If a person dies without a Will, probate may be necessary and this involves a judicial determination of who that person’s heirs are. The probate process often involves the Court appointing a personal representative of the deceased person’s estate. The personal representative’s job after appointment is to gather assets, pay certain debts of the deceased person, and distribute assets to the proper beneficiaries of a Will or the heirs of the decedent if there is no Will. 

This probate process takes place partially in the probate court and partially outside the probate court meaning all the things the personal representative of the estate does after that person is appointed. There is a natural division in my work between pre-hearing and post-hearing. Depending on the type of probate, the personal representative may have more or less court oversight. If the personal representative has less court oversight in an Independent Administration and more court oversight in a Dependent Administration. The following steps are typically necessary whether you have an Independent Administration or a Dependent Administration and whether the Decedent left w Will or did not leave a Will:

Probate is the legal process by which a deceased person’s estate is administered, debts are settled, and assets are distributed to heirs or beneficiaries. This process is typically overseen by a probate court and involves several steps, including:

1.Application to Probate

In the Application to Probate, your probate attorney sets out what type of probate this is, whether there is a Will or not and what the Applicant is asking the Court to do. For example, the Applicant may be asking the Court to admit the Will to probate. If a Will is not admitted to probate, it is just a piece of paper. It has not been validated until it is has been admitted to probate. If there is no Will, then the Applicant is telling the Court who the heirs of the deceased person are and asking the Court to sign an order stating the official heirs. 

2. Notices and Citation are Issued.

Various notices will be required depending on the type of probate case. The second step after the Application is getting the notices issued properly.

3. Hearing with Live Testimony

After the proposed orders are filed with the Court, most probate cases involve a hearing with live testimony before the Judge will sign the probate orders. If you have a well drafted Will, the Applicant is usually the only necessary witness. If there is no Will, you will typically have a minimum of three witnesses, all of whom need to be interviewed and available to attend the hearing. This is where having a well drafted and an updated Will is key. You can drastically reduce the cost and time of probate for your family by having a proper Will.

4. Judge Signs the Probate Orders

This is the meat. This is the outcome of the judicial probate process that the Applicant is looking for. The Judge is signing the order to validate the Will if there is a Will. If there is no Will, then the order is declaring officially who the heirs are and in what percentages for each type of property (community or separate). The Judge is usually appointing a personal representative (Executor or Administrator) in the order. The order is the keystone to getting access to assets and to having the authority to negotiate or deal with creditors and this is what most people are looking to achieve out of probate.

1. Inventorying Assets
   All assets owned by the deceased, such as property, bank accounts, and investments, must be accounted for. The executor or a court-appointed representative handles this step with the guidance of their attorney. 

2. Paying Debts and Taxes
   Before assets can be distributed, the estate’s outstanding debts and any applicable taxes must be settled. The process of addressing a creditor's claims is particularly tricky and you need to consult with a probate attorney in this step of the process

3. Distributing Assets
   Once all debts and taxes are cleared, the remaining assets are distributed to the beneficiaries in accordance with the will or, if there’s no will, according to state law. 

Why Do People Want to Avoid Probate?

Probate can be beneficial in certain cases, but there are reasons why many families seek to avoid it:

• Time-Consuming: Probate can take several months or even years to complete, particularly for larger or more complex estates. During this time, beneficiaries may not have access to the assets they’re entitled to.

• Costly: Probate involves legal and court fees, which can reduce the value of the estate. In some cases, these costs can amount to a significant portion of the estate’s value.

• Lack of Privacy: Probate is a public process, meaning the details of your estate and beneficiaries become part of public record. Many families prefer to keep this information private.

Common Challenges During Probate:

There’s a Will but it is poorly drafted or out of date:

Common issues resulting from poorly drafted Wills are: 

• unclear language

• failure to provide for the possibility of underage or incapacitated beneficiaries

• failure to name a residuary beneficiary. 

Handwritten Wills are valid in the State of Texas but most often they are not written with the supervision of an estate planning attorney. Handwritten Wills can be problematic in a number of ways including finding disinterested witnesses who have personal knowledge of the deceased person’s handwriting. We have seen many estates in which the person who left the handwritten Will died in their 80’s and most if not all the people who could testify to the person’s handwriting are deceased. 

There is almost always a way to probate a Will even if it is not drafted well; however, it will always be more expensive and take more time to probate than a current Will (not less than 10 years old) that was drafted by a qualified estate planning attorney. 

Problems when there is no Will:

Some of the top issues for families when a person dies without a Will:

Cost of probate is easily 4-5 times more than a probate with a well drafted Will. 

Difficult to find witnesses who have personal knowledge of heirs and do not stand to inherit themselves. Our world is becoming increasingly disconnected and the ability to find witnesses with personal knowledge is becoming harder and harder and as a result the cost of probate is becoming more and more expensive.

Final Thoughts

Probate can be a time consuming and expensive process for your family. It is best to plan to avoid probate and as a backup plan to have a well drafted Will in place so that your loved ones are not facing an uphill battle after your death. See our upcoming blog on How to Avoid Probate. 

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