What is the basic concept of "Probate?"
Now when someone leaves a will, it is necessary to prove that the person who made it is dead. The will goes into effect only after the personís death. While the person who made it is still alive, the will cannot be put into effect.
The basic concept: wills only become effective after the maker stops breathing, while powers of attorney are only effective while the makers are still breathing. Use of these two estate planning documents donít overlap. But a will is not automatically "effective" upon oneís death. Making the will "effective" is the initial step in the probate process.
What is the Definition of "Probate?"
The term "probate" has two primary meanings. The first application of the word "probate" is attributed to the judicial process of proving the validity of a will (if a will exists) in a court with jurisdiction to hear matters relating to wills and estates of deceased individuals (not all Texas courts can hear these type of cases; for example, local justices of the peace do not have the statutory authority to hear a case involving a will). In Texas, the original will and all codicils to the will (that is, written amendments of a will) are filed with the County Clerkís office in the Texas county where the decedent lived, along with an application to a court with appropriate jurisdiction (in Harris County, one of the four probate courts will be randomly assigned the application for disposition). Basically, this application will ask the court to acknowledge that the decedent is dead; approve and acknowledge the filed will (and any codicils) as the last will (and the last codicils) of the decedent; and approve the appointment of the executor named in the will.
After a very brief court hearing where the executor named in the will typically provides sworn testimony to the judge (this hearing will last no more than 2-4 minutes in uncontested matters, where the will has a valid self-proving affidavit, the executor is appointed as an "independent executor," and no unusual proof problems or will interpretation problems exist), the judge presiding over the hearing will sign an order "admitting" the will to probate. The will is now "effective," or formally recognized by a court with probate jurisdiction as the decedentís will. And after the executor takes an oath swearing (1) that to his or her knowledge the will is the last will of the decedent; and (2) that he or she will perform all of the duties of the executor named in the will, the executor may then begin the next step of the probate process in Texas.
After qualifying as the executor of the estate by the filing of the oath described above, the executor of a will becomes the decedentís representative for the purposes of terminating the decedentís affairs. This process is also commonly called "probate" or sometimes "estate administration." This stage of "probate" or "estate administration" requires the executor to identify and locate the decedentís assets; assist in the valuation of decedentís assets; prepare an inventory listing those assets which will be filed with the court; pay decedentís debts, expenses of administration, and taxes (including the filing of the decedentís final income tax return and a federal estate tax return if applicable); and lastly distribute the assets which remain after discharging decedentís debts, expenses of administration, and taxes to those beneficiaries named in the decedentís will.
The word "probate" is also commonly applied to the judicial process of appointing and qualifying someone to become the decedentís representative for the purposes of terminating the decedentís affairs when the decedent died without a will.
The Texas Probate Code provides several mechanisms to address estates of nominal value, of substantial value, dependent administrators (whose actions must be approved in advance by a judge) who are required to furnish a fiduciary bond covering the performance of their obligations, and independent administrators who are free of court supervision. The estate and individual circumstances will dictate which of these Texas Probate Code procedures might be appropriate for you.
The proper use and funding of a revocable living trust may avoid the probate process entirely if you donít make the mistake of forgetting to place a probate asset into the trust. For example, if you forget to transfer a security (say, some stock you own) into your revocable living trust before you die, your pour-over will (the will prepared at the same time your revocable living trust was prepared, where you give any "forgotten" or "omitted" property you own to your revocable living trust as your sole beneficiary) must be probated in order to collect and transfer the security into the trust. So if the sole reason for your having a revocable living trust is to "avoid probate," you better not make any mistakes in funding your trust.
Occasionally, probate of a will might not be required if the decedent did not own real estate, or if the decedentís estate is solely composed of non-probate assets (that is, an asset which may be collected by an individual without qualifying as the executor or administrator of an estate; for example, life insurance proceeds payable to a named beneficiary, or a certificate of deposit with a named payable on death beneficiary, or a bank account or a security with a joint right of survivorship designation).
For a variety of reasons in Texas, land cannot be easily transferred by contractual survivorship designations. Therefore, land in Texas is considered to be a probate asset (that is, an asset which may only be collected by an individual qualifying as the executor or administrator of an estate).
An attorney in Houston, Texas who practices in the area of probate law will be able to provide wise counsel on the simplest and the least expensive probate procedure which will achieve your goals.
I regularly assist clients in probating the estates of their loved ones, probating wills, and also exploring alternatives to probate which may be appropriate under the circumstances.