Understanding Probate

Probate images including will, gavel, house, and cash

Probate is, at the basic level, the process of the court overseeing what happens with a person’s assets or belongings after a person dies. Officially, someone gathers the person’s assets and distributes them to the beneficiaries or heirs. That person is responsible also for handling any debts the decedent owed by paying those out of the estate. Finally, taxes also must be addressed, both the deceased person’s final income tax filing and any taxes the estate might owe.

Texas has several ways of handling probate. In some cases, multiple options are available. But not all options are the best idea in each situation. A key point is timing: in Texas, a will must be probated within four years of a person’s death. After four years, options are limited.

Florida also has different types of probate as well. But Florida has less leeway in choosing one type over another. Which is needed for each estate depends on the value of the assets subject to the court’s oversight.

Does the Estate Need Probate?

If the decedent (that is, the person who died) had no property in her name, then probate might not be needed. But property is broad: this includes not only land but also bank accounts, cars, retirement accounts, investment accounts, and rights to an inheritance. Some things people own, such as retirement accounts, might have a beneficiary already listed; those do not need probate. But if no beneficiary is named, then probate will be required. For those who want to avoid their loved ones having to go through the probate process, estate planning can help.

Who Begins the Process?

If an estate needs probate and the decedent had a will, usually the person who is named as the executor (in Texas) or the personal representative (in Florida) initially petitions the court to begin the probate process. If there was no will, each state’s statutes specify who would be the most likely person to initiate probate to be named the administrator or personal representative. Also, though, if no one opens probate and a creditor is owed money, that creditor can open probate in order to protect its claim against the decedent’s estate.

In Texas, the person who is petitioning the court to be named the executor or the administrator will need to testify in a hearing. (Many Texas courts are still holding hearings via Zoom, especially in Harris County, but the majority are beginning to return to in-person hearings.) In Florida, the process of opening probate is typically completed through signed documents the attorney submits to the court. In-person appearances are much less likely for straight-forward probate proceedings in Florida.

What are the Steps of the Probate Process?

When an executor, administrator, or personal representative is appointed by the court, the court issues letters (it's actually just a piece of paper signed by the judge) that authorize the person to act on behalf of the estate. The attorney will help with handling notice to creditors. And the clock starts in calculating the time before which an inventory of the estate is due.

In the meantime, the executor, administrator, or personal representative begins the process of gathering assets so she can create an inventory of what the estate owns. Accounts often need to be closed and transferred; property might need to be sold; and estate same might also occur for personal property. The executor, administrator, or personal representative handles distributing personal property based on the terms of a will or based on the state's laws of what to do if there is no will.

If a beneficiary or an heir is disgruntled regarding their share of assets to be received or left out of the will entirely, they may petition the probate court to effect a change. Contesting a will to a probate court as a potential or disgruntled heir usually involves claims that

  • The decedent was not of sound mind (mental state) when writing their will.
  • The decedent was under undue influence.
  • Someone suspects fraud or forgery.
  • The will was executed improperly.

When all claims and duties are complete, if the court is overseeing the process, the executor, administrator, or personal representative will often file a petition to allow the final distribution of estate property. This process can take a year or more in many cases, depending on the size and complexity of the estate. In Florida, the estate will be formally closed. In Texas, sometimes an independent administration will be left open. How this works is state- and case-dependent and part of the reasons an attorney is needed.

Working with an Attorney During Probate

The probate court process can be lengthy and complex or short and straightforward depending on the size of the decedent's estate, the validity or existence of a will, proper and prompt filing of information, and heir/beneficiary and creditor challenges to the estate. The attorney, who represents the executor, personal representative, or administrator (and not the estate itself or the beneficiaries or heirs) helps coordinate the process and communicates with the court.

To understand how to handle the probate for a loved one’s estate or to better plan your own estate, it is best to work with an attorney. Please contact McCreary Law Office or call the Jacksonville, FL office at 904-425-9046 or the Houston, TX office at 713-568-8600 to learn more.

Attorney Jana McCreary

Jana R. McCreary's Profile Image
Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over eighteen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduatin… Read More

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