What is probate and why is it necessary?
Probate is the judicial process of dividing and closing the estate of a deceased person. It generally involves validating the will (if there is one), taking an inventory of the deceased person’s estate, paying debts, figuring out who gets what portion of the estate, then transferring that share of the estate to each person.
When a person dies, their heirs are immediately vested with their ownership share of that person’s estate. However, there is usually no way for the heirs to prove their ownership. This makes it difficult and often impossible to actually claim the property.
Enter probate.
The probate process will settle the critical questions, such as:
- Who are the heirs to the estate?
- What assets are in the estate?
- Which heirs get which part of the estate?
- What are the liabilities of the estate? Should those liabilities be paid?
The probate court will usually appoint someone to be the administrator or executor of the decedent’s estate. That person has several tasks that he or she must perform. They must notify all potential heirs of the probate proceeding. They must notify all possible creditors of the decedent. And they must gather all of the assets and distribute them to the heirs, according to the share that each heir is supposed to receive.
If a person executes a will and does some planning before they die, the probate court’s involvement in the administration of the estate can be minimized and, perhaps, eliminated.
If a person dies without a will, the probate court will be more involved. The default proceeding in such a case is called a dependent administration. Let’s call it an DA for short. The probate judge will be very involved in a DA. The administrator must get permission from the judge to spend estate money in order to maintain estate assets. Getting such permission can involve going to court, where the administrator must persuade the judge to grant permission.
In some cases, the probate judge may allow an administrator to act independently. But even in these cases, the administrator may have to provide an accounting of all estate transactions to the judge. There will be some oversight from the probate court.
All of this results in expense and trouble for the decedent’s heirs. That’s why it is always wise to do some level of end-of-life planning and to make sure that planning involves the execution of a will and other life-planning documents.
This is just an overview. All cases have their unique challenges. The probate process can be complex, time-consuming and expensive. I recommend consulting with an attorney who practices probate law. That is the best way to navigate the process smoothly and ensure compliance with Texas law.
