Don't Be Afraid Of Probate: What Probate Is & How It Works [Probate Q&A Video Series]

What is probate? Probate legally refers to any action to handle an estate, with or without a Will. In this blog, however, we will discuss probate as the procedure to implement the provisions of a Will for a deceased loved one. This is how most people think of probate. 

Below, you can learn the steps in the probate process, the situations in which probate will be necessary, and when you can skip the process altogether.

What Steps Are Involved In The Probate Process?

Probate is the legal process required to implement the wishes of a deceased loved one for the disposition of his or her assets. The steps involved in the probate process will depend on the type of probate necessary. 

Some probates can be handled as probate as a muniment of title. This only can be done where there are no outstanding debts of the estate other than a lien against the estate property. All that is required for this procedure is the following:

• The Will is filed at the county clerk's office in the county where the deceased lived, along with the application for probate as a muniment of title.
• A citation to the public that the Will has been filed is posted at the courthouse for at least ten days.
• The applicant for probate appears before the county judge (often, post-COVID, by Zoom or telephone) for one simple hearing.
• The judge enters an order for probate of the Will as a muniment of title. This directs any third parties who are holding assets of the deceased to transfer them to the persons named in the Will.

If a full probate or "independent administration" of the estate is required, the process involves more steps. The procedure will take longer and cost more money. You can learn more about the types of probate in this blog.

DOWNLOAD A FREE PROBATE FLOW CHART, HERE, TO SEE A VISUAL BREAKDOWN OF THE PROCESS.

When Will You Have To Go Through Probate?

Many people believe the probate process is complicated, expensive, and time-intensive. This is not true in most situations. Frequently, probate will be required, but it isn't something to be dreaded.

Probate will be required if:

• The deceased loved one owned real estate
• The deceased owned oil and gas interests
• The deceased owned other assets of significant value not transferred by beneficiary designation
• These assets were not placed in a trust during the deceased's lifetime

The main differences between probate with a Will and probate without a Will are the number of steps involved and the expense. With a Will, you could spend around $1,500 to $2,500 for a simple estate, depending on whether probate as a muniment of title is available to you or not. 

Without a Will, however, probate costs are often $3,500 or more. In this blog, I explain the cost of probate with and without a Will in more detail, as well as the ballpark numbers you could expect to pay to draw up a Will in Texas.

When Can You Skip The Probate Process?

Texas law allows alternative procedures to handle the passage of an estate that are quicker, less involved, and less expensive than a full probate. If you are able to take advantage of these probate alternatives, it is wise to do so. 

Typically, there is no need to probate a Will if the deceased's assets are already disposed of by beneficiary designation or payable on death provisions. This frequently happens if the loved one already has sold their home and is residing in a nursing home, and the only assets he or she still owns are liquid assets. These liquid assets should have a payable on death or beneficiary designation if proper planning has been done. That allows such assets to pass without a Will or probate.

Additionally, many third parties will accept a less expensive probate alternative, such as an Affidavit of Heirship. Title companies and oil and gas companies often accept an Affidavit of Heirship to transfer title to real estate or mineral interests, unless there is a very large amount of money involved. This may be the case if a loved one fails to draw up a Will before he or she passes.

An attorney can help you determine whether a probate alternative is applicable to your unique situation.

Let Adair M. Buckner Guide You Through The Probate Process

Did your loved one pass away with or without a Will? Do you need help navigating the probate process or determining if you can skip probate entirely? Contact Adair M. Buckner using the button below to schedule a free initial consultation*.

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* (The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal, or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.