Probate & Wills FAQs

What is Probate?

Probate refers to the process where a court oversees the administration of a deceased person's estate. Probate property refers to property that was titled in the name of the deceased person. A probate proceeding takes place in the county where the deceased person resided. If the deceased person also owned real property located in another state, probate may be required in that state as well; this is referred to as an ancillary probate proceeding.

What is the purpose behind the probate process?

The purpose of the probate process is to ensure that any final bills and expenses are paid, including any taxes owed; any assets remaining are distributed to the beneficiaries named in a will; or if the decedent died intestate (without a will), any assets remaining are distributed to the correct heirs under the Texas laws governing intestate succession. 

Does every estate require probate administration?

Not all assets are subject to probate administration.  Examples of assets that are not subject to probate administration in Texas include assets held in joint tenancy with right of survivorship, assets held in a living trust, and assets with beneficiary designations, including IRAs and life insurance. 

Texas also has a summary probate administration for small estates, where if the individual dies without a will and the value of the estate, excluding homestead and exempt property, is $50,000 or less, a Small Estates Affidavit can be filed with the probate court for approval, to transfer the homestead, but no other real estate.  For more information on the summary probate procedure, see the Texas Probate Code Section 137.

Texas has the simplified probate process for small estates as well, where the executor of the estate, who is the person designated in a will and who oversees the administration of the estate, may upon request of the probate court authorization to distribute assets without going through a full probate administration.  To use this process, the value of the property cannot exceed the amount needed to pay family allowances and particular creditors.  For more information on the simplified procedure regarding small estates, please see the Texas Probate Code Section 143. 

What are the advantages of having a will?

Few people realize that if they die without a will or trust, the State of Texas will decide how their estate will be divided and distributed in accordance with Texas laws regarding intestate succession.  Unfortunately, the laws regarding intestate succession frequently do not reflect what the decedent may have wanted for the disposition of their estate.

A will allows you to designate who you wish to leave your assets to and how you want the assets of your estate to be distributed (for example, as outright gifts or held in trust for that beneficiary).  A will also allows you to appoint the person(s) or entity you want to oversee the administration of your estate (the Executor of the estate).  If you have minor children under the age of 18, a will also allows you to designate the guardian(s) for your children. 

If you need assistance with the preparation of a will or a probate administration matter, the Law Office of Gary L. Nichols, PLLC provides experienced and effective legal representation. Contact the Law Office of Gary L. Nichols, PLLC to schedule a consultation.