WHAT IS PROBATE?
Probate is proving what you own, what you are owed and who should get the remaining property after the bills are paid according to your Will or, if you did not make one, a Court determination of your heirs and their rightful shares.
In most Texas counties you need a lawyer for probate. As experienced probate attorneys, Terry Garrett and Melanie Ibarra-Herrera can help make settling your affairs smoother and faster whether with a Will, a Determination of Heirship, or an Affidavit of Small Estate.
What about taxes?
Many people confuse probate with estate taxes. While the federal estate tax exemption was once as low as $600,000, in 2023 it is $12.92 million. Texas has no estate or inheritance tax. Unless you have a beneficiary in a country or in one of the four states which has an inheritance tax, neither your estate nor its beneficiaries will pay tax.
Does someone have to go to court to settle my affairs?
Yes, unless your heirs are able to file a Small Estate Affidavit. If there is a valid and properly signed, witnessed and notarized Will providing for an independent administration without bond, Court involvement will be minimal.
The person settling your affairs, your executor, will only need to go to Court once. He will spend less time in Court than it takes to drink a cup of coffee. His only other contact with the Court can be signing affidavits and the Inventory, Appraisement and List of Claims. These will be electronically filed by the probate lawyer.
Is probate expensive?
Not in Texas. Because Texas allows estate administration independent of Court supervision in most cases, the cost of probating an estate in Texas is about one-quarter the average cost of probate in the U.S.
Your family can be provided for. Your property can pass the way you want.
Is it hard?
Texas probate can be easy. The person you name to settle your affairs, your executor, will receive Court papers (Letters Testamentary) allowing him to deal with your property. He must ask an attorney to present your Will in Court and help administer your estate. He must file your final income tax return.
Your probate attorney can ask the Court to set aside an allowance to support your family for a year. She can ask the Court to exempt your homestead and other items altogether. She can place the required newspaper notice to unsecured creditors and negotiate with them. She can notify the secured creditors and the beneficiaries and make sure that things run smoothly, letting your family focus on memories.
The situation is more complicated if only a copy of your Will can be found. The copy can be probated but only if the subscribing witnesses or people familiar with your handwriting can testify in Court.
There are also situations in which an independent administration is not allowed. For example, if you leave minor children, the Court can require a dependent administration to protect their interests. This means that your executor must seek Court approval before acting, submit an accounting to the Court and seek the Court’s permission before paying bills, selling property or distributing inheritances. Dependent administration can be as expensive.
But unlike some states, in Texas probate attorneys are not paid a percentage of the estate. The Court determines how much they can charge per hour and, in dependent administrations, audits their invoices.
What if I don’t have a Will?
If you do not leave a valid Will, probate can take longer and can cost a good deal more — depending on what you leave. More important, your property may be divided differently from what you expected, regardless of what you told people you wanted.
Some people hope to avoid complications by leaving everything to one person and trusting them to follow oral directions, forgetting that that person cannot give a gift of over $17,000 (2023) per year or $85,000 (2023) as a gift over five years without the gift incurring gift tax.
If all you leave is your home, your heairs or two people who know your family but are not your heirs can sign an Affidavit of Heirship. It must be filed in the county deed records for five years before a Court will enforce it. This allows anyone who was forgotten to come forward. Courts treat an Affidavit of Heirship as evidence, not as conclusive proof.
If all you leave is your home and up to $60,000 in personal possessions and $75,000 in other property (such as a bank account), all the heirs and two people who know your family but will not inherit can sign an Affidavit of Small Estate. All must sign before a notary and promise to pay your debts. Only a surviving spouse can receive a homestead through an Affidavit of Small Estate. While in many counties over 90% of Affidavits of Small Estate are rejected, in counties where the Affidavit of Small Estate is reviewed by an attorney, the rejection rate drops by half.
If you leave more or if the required people will not all sign, an heir must file an Application for Determination of Heirship and Issuance of Letters of Administration The Court must appoint an attorney to help find possible missing heirs, heirs whose address is unknown, and people who are unable to act for themselves such as children. The search must be announced in the newspaper. Some heirships are straightforward. Some require hiring a private investigator to find heirs. This increases the cost and lengthens the time needed to settle your affairs.
Help your family remember you, not the cost and frustrations of trying to settle your affairs. Make a Will — and update it as your circumstances change.
It’s never too early to plan for your future.
Planning can give you a sense of control and make life easier for those you leave behind.