Most people know that certain tasks must be accomplished when a person dies. Why is that? A deceased person can no longer collect his or her income or pay his or her bills. Most people would agree (subject to differences of religious beliefs) that a deceased person no longer uses his or her property, resources, or assets. Either beneficiaries, heirs, or the State government obtains ownership to property, resources, and assets upon a person’s death. The answer about who receives these assets depends on what type of planning the deceased person did before death.
What is probate? Probate is not one type of proceeding. Instead, it is more like a continuum of a simple proceeding with successively more complex requirements and procedures that vary depending on the facts and circumstances that exist in the deceased person’s life and property, resources, or assets, and the beneficiaries or heirs lives, and facts and circumstances. Visit our website on the following page to learn more about why a will must go through a court proceeding called probate: link The more planning you do, the less work your beneficiaries must do. The less planning you do, the more work your beneficiaries must do in order to transfer title from you upon death to them as living beneficiaries. Probate of a will is easier and less expensive than probate when a person dies without a will.
In Texas, a small estate affidavit may be used when a deceased person died without a will, left a surviving spouse, left assets not exceeding $75,000 that exceed the value of debt that is left, and maybe left a homestead even if it has a mortgage. Some attorneys will say that this is a simple process, but in our experience, there are very few people who will meet all of the requirements.
One of the most complex types of probate proceedings is dependent administration and determination of heirship. This proceeding is the path an administrator or personal representative must take if the deceased person dies without a will and does not qualify for using any simpler proceeding. The administrator is supervised, must post bond, and must ask the court for permission to collect assets, sell property, pay bills, and finally distribute property to the heirs. Check out our website at link 2 to watch a video of me telling a funny story about “laughing heirs.”
You can make probate easier if you plan for your legal affairs using a last will and testament. You might be able to avoid probate altogether if you plan for your legal affairs using a living inter vivos revocable trust. Visit our website at video link to read more about our probate avoidance plans.
