Jack E. Withem, PC
Attorney at Law
Houston, TX
(713) 462-8887
JACK E. WITHEM, P.C.
ATTORNEY AT LAW
FREQUENTLY ASKED PROBATE QUESTIONS
The following information is not intended as legal advice and it does not create an attorney-client relationship. Probate law is very complicated, and you should consult with an attorney before taking any action.
WHAT IS PROBATE?
“Probate” is the legal term for the court proceedings after a person's death.
WHY SHOULD I DO ANYTHING IF THE WILL LEAVES EVERYTHING TO ME?
A Will has no effect until the Judge signs a Judgment finding the Will to be valid. If you wait too long, the Will cannot be probated.
WHAT HAPPENS WHEN I FILE A WILL FOR PROBATE?
A written petition asking for probate of the Will is filed with the County Clerk. Citation is posted for the public at the courthouse for at least 10 days. If no contest is filed, a hearing will quickly be scheduled where Court will admit the Will to probate and name an Executor. The named Executor “qualifies” by taking an oath, and "Letters Testamentary" are issued by the County Clerk. Letters Testamentary are evidence of the Executor's authority to act and are often required by banks, insurance companies, stock brokers, etc.
WHAT DOES THE EXECUTOR DO?
The Executor winds up the deceased's affairs which is called "administration". The Executor locates and values estate assets; files an Inventory with the court; pays debts, and distributes the remaining assets to the beneficiaries.
Within one month after qualification, notice to creditors must be published in a newspaper. Within four months after qualification, creditors are sent notice by certified or registered mail.
Within 90 days after qualification, an Inventory, Appraisement and List of Claims must be filed. It is possible to obtain an extension of time.
Federal tax returns may be required.
WHAT ABOUT LIFE INSURANCE?
Life insurance is paid to the beneficiary named in the policy. If the estate is the named beneficiary, insurance proceeds are paid to the estate to be managed by the Executor as other assets.
WHAT IF THERE IS NO WILL?
In addition to the procedures listed above, a court hearing determining who the heirs are is required and sworn annual accountings are filed setting out what assets were received and what bills were paid. Written applications for permission to make most expenditures are required or the administrator may be personally liable for return of the money if the court does not ratify the payment by a signed court order.
WHAT IF THERE IS NOT ENOUGH MONEY TO PAY ALL THE DEBTS?
This is a complicated area and the Probate Code provides a classification for each type of debt for which a claim is properly filed or presented and the order in which claims are paid. In some instances the homestead is passed free of all debts and the creditors are not paid.
HOW LONG DOES PROBATE TAKE?
In the simpler estates where a properly written Will is probated, probate can be completed in about six weeks. If litigation or tax returns are required the time is longer.
WHO RECEIVES THE ESTATE IF THERE IS NO WILL?
The Texas Probate Code § 38 specifies who will inherit without a Will and is reproduced below. Distribution differs for community property and separate property and where children of different marriages are involved. The applicable state statutes are provided below.
Separate property - Tex. Prob. Code § 38 (2005) )
(a) INTESTATE LEAVING NO HUSBAND OR WIFE. Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:
1. To his children and their descendants.
2. If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.
3. If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.
4. If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
(b) INTESTATE LEAVING HUSBAND OR WIFE. Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate shall descend and pass as follows:
1. If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.
2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.
Community Estate - Tex. Prob. Code § 45 (2005)
(a) On the intestate death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:
(1) no child or other descendant of the deceased spouse survives the deceased spouse; or
(2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
(b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of this code. In every case, the community estate passes charged with the debts against it.