Probate is the court process used to determine the validity of a will and oversee the payment of creditors and distribution of estate assets.
The process begins with the appointed executor coming forth with the deceased person’s original will. If an original will cannot be produced, additional evidence will be required. If there is no will or copy, the court will appoint an administrator, either a direct family member or, if necessary, a neutral third party. The administrator has almost the same rights and responsibilities as the executor. However, the executor or administrator will often need legal counseling or representation.
There are many legal documents that can help property get around the probate process, including living trusts, joint ownership, pay-on-death bank accounts and gifts. All of these are ways to transfer ownership of assets so that they are not in the owners’ name at the time of their death. By doing this, these assets do not need to go through probate and instead go directly to beneficiaries.
If these precautions were not taken before the time of death, however, assets will likely need to go through probate, which may require the assistance of a lawyer.
If someone dies without a will, the state of Texas dictates how the assets will be divided and distributed. The state draws a distinction between separate property (property acquired before marriage, or acquired as a gift or inheritance during marriage) and community property (property acquired during marriage). Depending on the type of property, the distribution procedure may be different.
A good probate attorney can help make the process of probate without a will easier and less costly.
Probate can get messy if family members choose to contest a will. Often, this occurs when family members are unhappy with what they received from the will, however, a will may only be contested if the validity of the will is in question. For example, if it was not properly drawn, signed or witnessed; if the will was executed during a time when the decedent lacked mental capacity to do so; or if there is reasonably suspected fraud or forgery.
When a will is contested, an experienced attorney is essential to help prove its validity.
When the deceased person leaves behind debts, a Personal Representative (executor or administrator) is responsible for using estate assets to pay them off. If the assets are not enough to cover the debt, beneficiaries receive nothing, but are also not legally bound to pay off the debt. Many creditors will still hassle family members for payments, however, so you may need to hire an attorney to help.
Not everyone needs an attorney to go through the probate process, but a legal professional can help make the process easier by saving you time, stress and even money. The services a lawyer provides go beyond filling out paper work – he or she can help you appraise property, handle insurance benefits, address tax issues, settle dispute and ensure that assets will be distributed according to the decedents wishes.