Probate

Probate is a legal process that happens after someone passes away.  Probate is the process that legally handles what happens to a person’s estate to determine what happens with the deceased person’s bank accounts, their home, cars, debts, and any financial investments a person may have, such as stock accounts.  Probate occurs regardless whether a person has a will or not.

For the court to probate a person’s estate, someone must be in charge of doing it.  If there is a will in place, this person is called an executor.  They can also be called an administrator.

Regardless of whether this person is called an executor or an administrator, this person’s job is to pay any outstanding debts or bills and make sure the person’s will is followed in terms of distributing assets to the deceased person’s heirs if there is a will.  If there is no will, then the executor or administrator must follow the law in terms of how these assets are distributed.

In theory anyone can be named as an executor or an administrator, but normally you see a family member or close friend be appointed.  The executor or administrator can decline this position if they do not want to serve.  If there is no will, or if the will doesn’t have a back-up option available, then the judge will appoint someone else.

This person’s job is to remain in place until everything in the deceased person’s estate has been finished in terms of paying debts and paying heirs, if there are any.

How Probate Works

The probate process begins with determining whether the person who passed away had a valid will at the time of their death.  There are certain requirements to determine whether the will was valid since some will are not valid.  The main requirements, though there are more, is to make sure the person complied with state laws, didn’t sign the will under duress, and to make sure that there isn’t a more recent will in place somewhere.

Assuming there is a valid will in place, then the will and the proper court documents must be filed in court.  Then the judge will name the executor or the administrator.  This person will have the power to act on behalf of the estate to make sure matters are being handled properly.

With the exception of real estate, the executor is responsible for making sure all debts and bills are paid.  Creditors only have a certain amount of time to respond to claim they are owed.  If the creditors wait too long to respond, then it will be too late and the creditors will not be paid.  Real estate is the exception because real estate will be probated in the county where the real estate is located.  For example, if someone dies in Harris County, but they have real estate in Miami, Florida, then a separate probate process will have to be done in Miami.

Finally, the executor will have to pay any final income taxes.

Probate may be skipped in some states altogether depending on the value of the estate.  In Texas, if the estate is valued at less than $75,000, then you may not need to do probate.  This $75,000 does include the value of the home.

If the estate is valued at less than $75,000, then a small estate affidavit can be filled out, completed, and turned into the court.  Depending on the county in Texas, you may not have to go to court.

How Long Does Probate Take?

The length of probate can vary greatly depending on several factors.  Those include whether the following:

• Did the deceased person leave behind a valid will? Probate matters generally take much longer if there is no valid in place.
• If there was a valid will in place, is the family in complete agreement over what should happen with the deceased person’s estate? In other words, if family members are fighting over the estate, this can lead to full-blown lawsuits, and lawsuits can take months or even years.
• Is there any out of state property that also has to be probated? This can add on time to the process if there is property in another state.
• Finally, does the executor or administrator both want to serve and are they able to serve? Sometimes people decline this position, which can be challenging, and then the process is delayed as the court finds another person to fill this position.

These are the main factors that determine how long a probate matter can take, but it is not meant to be complete because other issues may arise.  Of course, there is also the court backlog of there simply being too many cases and not enough courtrooms and judges to handle the cases.

If you feel your probate case is taking longer than it should, call us for a consultation and we can see whether we can move your case forward faster.

How Much Does Probate Cost?

The cost of probate can vary greatly depending on the circumstances of your situation.  There are going to be three main fees that you have to consider:

• Court filing fees
• Legal fees
• Expert fees

It is not necessary to hire a lawyer.  In fact, many estates that are on the smaller side are probated without a lawyer.  However, if the estate is over $75,000, or if there is disagreement between the heirs over what should happen with someone’s estate, it is best in most cases to hire a lawyer.  A lawyer’s fees can range from a few thousand dollars to more depending on the circumstances.  Some lawyers will even charge a flat fee.

The court filing fees vary depending on the county.  In Harris County, for example, the court filing fee is $25.00, with some additional fees beyond this.

While not common, there are also situations where experts must be hired.  For example, in a larger estate, it may be that a forensic accountant is needed to untangle and make sense of the deceased person’s finances.  Or there may be a disagreement between heirs over the value of a home and then an appraiser must be hired.

If you work with an experienced probate lawyer, they can help you figure out what the costs of these experts will be, the best experts for the particular area you need help with, and how to find them and save money if needed.