Probate Frequently Asked Questions
Do you have questions about probate? Do you need to know more about the process? Are unsure if you need a lawyer?
We provide the answers to the most frequently asked questions (FAQs) about the probate process. Please select a category to narrow your search.
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I’ve been named executor under a Will, what kind of attorney do I need?
If you have been appointed as an independent executor, administrator or personal representative under a Will, you will need a probate attorney. It’s important to do the research to find the right probate attorney for your situation.
Some probate attorneys only handle uncontested matters. This means that they handle cases that have no anticipated problems with the beneficiaries named in the Will.
If you foresee a problem with the beneficiaries or if someone has been left out of the Will, you could have a contested matter. In this case, you would need an attorney that handles probate and fiduciary litigation.
We recommend that before you carry out any duties as an independent executor, administrator or personal representative, you should contact a qualified probate attorney.
What is an Independent Executor?
An executor is a person or institution appointed to carry out the terms of a Will.
An executor is considered independent if the decedent (person who passed away) died without a Will OR if the decedent left a Will that specifically states that his executor should be independent.
When the executor is independent, they are not dependent upon the Court for oversight and approval of all actions.
Learn more about executors in our article, The 9 Most Common Mistakes Executors Make.
What is Probate?
Probate is the act of proving that a Will was signed and executed in accordance with the legal requirements as set out in the State where it was signed. It is through probate that property is legally transferred from the estate of a person, known as the "decedent", to the rightful beneficiary. To determine who the rightful beneficiary is will depend on whether the decedent had a valid Will.
1. Ensure that the accounts are settled and stop creditors from attempting to collect if there are no monies.
2. Ensure that the title of any of the decedent's assets such as property and real estate would be transferred to the beneficiaries.
Seeking the advice of an attorney who specializes in probate law will help you determine what is best for the estate. If your loved one's property and assets must go through the probate process, nothing is to be feared. The attorney you select to represent the estate will guide you through the necessary steps. This will take the pressure off of you.
Our free book, Who is in Charge After You Die? gives additional information on understanding probate.
What is a Primary Beneficiary?
A primary beneficiary is a person or entity that is first in line to inherit an asset. In the event the primary beneficiary dies, or cannot be located, a secondary beneficiary is the next in line.
Do I Need a List of Assets to Probate an Estate?
Yes, it is absolutely necessary to have a list of assets. If you are going through probate, meaning that a loved one has passed away, and you are the executor, you are going to want a list of all the assets. That list is what your probate attorney will need.
Print out our Probate Checklist to find out what documents you need to settle your loved one's estate.
What is Breach of Fiduciary Duty?
If a person is named as an executor or trustee of an estate, that person is considered a fiduciary. As a fiduciary, they are required to act in the best interest of the estate.
If a fiduciary does not act solely in the best interest of the estate, they can be sued for breach of fiduciary duty by the beneficiaries of that estate.
Examples of breach of fiduciary duty include:
- Mismanaging funds
- Putting personal interests before the interests of the beneficiaries
- Not properly distributing assets
- Not distributing assets in a timely manner
- Being a detriment to the estate
An attorney can assist a fiduciary to ensure they are not held liable. We recommend speaking with a qualified probate or estate planning attorney before acting as a fiduciary.
Can the trustee of an estate be held personally liable if they do not fulfill their duties?
Yes, the trustee of an estate can be held personally liable. If a trustee does not make correct distributions and/or proper allocations exactly as the Trust states, they can be held liable for their wrongdoing and the beneficiaries of the Trust could sue them for breach of fiduciary duty.
A probate attorney can guide a trustee through the steps they need to take to ensure they fulfill their fiduciary duties and are not held liable. The Ashmore Law Firm has been serving the Dallas community for over 25 years. Please contact our office with any questions at 214.559.7202.
Want more information? We have additional frequently asked questions about the Probate process here.
Can the executor of an estate be held personally liable if they do not fulfill their duties?
Unfortunately, the answer to this question is yes, an executor can be held liable. If you have an attorney, ensure that they are a qualified probate attorney. There are many things an Independent Executor should know in order to make sure they fulfill their position properly. A qualified attorney will tell you exactly what you should and should not do as an executor.
If an executor does not do their job the right way, the beneficiaries of the Will can potentially sue for “breach of fiduciary duty”. In that instance, the executor can be held personally liable to all of the beneficiaries under the Will.
Learn more information about being an executor by reading our article, 9 Deadly Mistakes an Independent Executor Can Make.
How Long Does the Probate Process take to Complete in Texas?
The Probate process can take as short as 30 days to complete (if you have a Will) and as long as several years, depending on the complexity of the estate. There are rules about when and where the probate process must occur. For example:
- If there is a Will, it must be submitted for probate within four years from the date of death for all property to pass under the terms of the Will.
- The estate must be filed in the county where your loved one lived or where his or her principal estate was located.
Believe it or not, it was ultimately up to your loved one whether or not his or her estate will go through probate. Your loved one may have planned for it, or simply thought he or she would live forever and had plenty of time to tackle estate planning.
There are a number of documents that are needed to settle your loved one’s estate. Use our Probate Checklist to see what documents to you'll need.
How soon does an executor need to distribute the assets of an estate?
There is a not an exact time frame in Texas for the distribution process, but we recommend that you collect all of the assets of the estate first. You must also make sure before distributions can be made, whether or not there are going to be any taxes owed, such as, income tax from the first of the year till the time of the person's death, and any estate tax (If the estate is over the estate tax exemption amount). Also, there are ways the beneficiaries of the estate can attempt to force you to make distributions, but they must first go through the Probate Court.
There are a number of documents to settle your loved one's estate, use our Probate Checklist to help make sure you have the correct documents needed during the probate process.
What is the difference between Probate Assets and Non-Probate Assets?
Includes all interest and assets, real or personal, tangible or intangible, that are owned outright by a person at the time of his or her death. "Probate assets" are those assets that have no beneficiary designation and will pass under the terms of the Will.
These assets pass upon death to the named survivor or beneficiary "outside of probate." These assets are those that do not pass under the terms of a Will. They are assets that pass to a beneficiary named on the document that was signed when the asset was created.
Our article, Probate Assets vs. Non-Probate Assets goes into more depth on the difference between these assets.
My Loved One Passed Away, What Information do I Need to Probate their Estate?
There are a number of documents that may be needed to settle your loved one’s estate. Once you locate these important papers, make sure and put them together in a safe place. Here is a list of documents you may need:
- Last Will and Testament or any other estate planning documents
- Safe deposit rental agreement and keys
- Passwords for computers and online accounts
- Living trust agreements
- Life insurance, health/accident and sickness insurance policies
- Financial statements, including those pertaining to bank accounts, pensions, individual retirement accounts (IRAs), certificates of deposit, stocks and bond certificates
- Income tax returns for the past three years
- Birth and death certificates
- Deeds, deeds of trust, mortgages and mortgage releases, title policies, motor vehicle titles, lease statements for auto or real estate rentals
- Military records and discharge papers
- Unpaid bills and notes
- Bankruptcy filings and releases
- Nuptial agreements, marriage license, divorce papers
A qualified probate lawyer can be a great asset to help you make sure that you are handling the estate correctly as well as assist you with any legal matters. If you haven’t already contacted your loved one’s attorney or hired one on your own, you should do so soon.
For more information, request our free book, What to do When a Loved One Dies.
What happens when someone dies without a will in Texas?
Texas law requires that estates for individuals who died without a Will be distributed to the closest family members, if there are any. It is the state of Texas that determines who these people are and how much they get.
My husband has passed away and left a will to divide his assets between my children and myself. Can I just go ahead and do so or do we need to probate the will in court?
A will can be probated in a couple of different ways. It would be advisable to consult with a Probate attorney to determine if probate is necessary and how the Will should be probated.