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 consists of assets that are jointly titled or have a beneficiary designation.
These are known as non-probate assets, and upon death, these assets automatically transfer to a co-owner or listed beneficiary without any need for court intervention. 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 simplify the process of transferring assets through the use of a Small Estate Affidavit rather than going through a full court-supervised probate. However, for an estate to be eligible for a Small Estate Affidavit, strict requirements must be met.
The decedent must:
- Not have left a will
- Have no real estate involved; and
- The total estate value must be $75,000 or less.
For this process, you must know the exact account balance, account number, and whether any accounts are classified as separate or community property. Additionally, a small estate affidavit requires the signature of all heirs, meaning all heirs must agree about the distribution of the property and consent to the use of the small estate affidavit. Finally, any potential creditors must be paid before the affidavit is filled out or disclosed.
Another alternative to a full probate in Texas is through the use of a Muniment of Title. However, this only applies in specific situations where real estate is the only asset needing to be transferred. A Muniment of Title requires a valid will, and no debts other than those which are attached to real property, can be owed by the estate. However, this method carries with it the risk that if any non-real estate asset does arise after the execution of the Muniment of Title, a full probate, or version thereof, may have to be opened.
In Texas, if proper planning has been done prior to a decedent’s passing, real estate can pass automatically outside of probate through a Transfer on Death Deed or a Lady Bird Deed. However, these deeds must have been executed prior to the owner’s death. This would then negate the need for probate or a version thereof, such as a Muniment of Title, in situations where there is only a need to transfer real property.
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 Robbins Estate Law, 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.
Do you qualify for probate?
Fill out our quick questionnaire to determine if you need probate, what type of probate you may need, and estimated fees.
The Probate Attorneys at Robbins Estate Law 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 Robbins Estate Law, 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.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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