After someone dies, it is usually necessary to coordinate the organization and distribution of the decedent’s estate. Typically, but not always, this will involve having the decedent’s will admitted to probate. When a person dies with a valid will in place, they are said to have died “testate.” In that case, the terms of the decedent’s will is going to dictate the management and distribution of the decedent’s estate. On the other hand, if a person dies without a will, that person is said to have died “intestate,” and the distribution of that person’s estate is dictated by the terms of the Texas Estates Code.
Over the next several posts, we will take an in depth look at the Texas probate process including going through the various steps that comprise the Texas probate process. There will also be posts dedicated to discussing administering an intestate estate and other special circumstances an executor may encounter. Throughout the series, we will assume that the decedent died with a valid will in place, and that you have been named in the decedent’s will as the independent executor of the decedent’s estate. We will also refer to the deceased individual as the “decedent.”
To get started, this first post will discuss what attorneys really mean when they refer to “probate” and the “probate process.”
What is Probate?
Probate is defined in the dictionary as “the process of proving in a court of competent jurisdiction…that an instrument is the valid last will and testament of a deceased person….” While this definition is accurate it isn’t very encompassing. Probate is really about the process of winding up the decedent’s affairs.
This winding-up process can involve a number of different tasks including, but not limited to, having the decedent’s will declared as valid and admitted to probate, gathering the decedent’s property (real property and personal property), closing up the decedent’s bank (checking, savings) and/or investment (i.e. brokerage) accounts, paying any final debts owed by the decedent (e.g. credit card bills, hospital bills, etc.), and paying any final taxes of the decedent (will include the filing of a final income tax return and, if necessary, an estate and gift tax return). The probate process may also involve selling some of the decedent’s property (liquidating the estate), collecting any insurance proceeds on the life of the decedent, dealing with retirement assets, IRAs, etc. owned by the decedent, and making distributions to beneficiaries and/or heirs.
As should be obvious by now, being an executor is very much a job. The probate process itself may seem overwhelming at times, but your estate planning attorney will play an important role in guiding you. Come back next week as we break down the first steps of the Texas probate process including meeting with an engaging an attorney to represent you as the independent executor.