The technical meaning of probate is simple: it is the court procedure where a deceased person’s will is proved to be valid or invalid. In Texas (and most states), this is an easy task if no one is contesting or challenging the will. It is nevertheless an important task because a valid will transfers ownership of the deceased person’s property to the named inheritors, much like a deed. And society needs a method to verify that transfer of ownership.
Current usage of the term “probate” has been expanded to generally refer to the entire – sometimes messy – process of administering a decedent’s estate. This misconstruction is how “probate” gets its dirty reputation. But, crudely put, when someone dies, there’s stuff to do.
Though not every estate needs to be formally probated within the court system, every estate needs to be administered to some degree and by someone with legal authority to step into the decedent’s shoes.
Generally, administering a decedent’s estate includes:
- Identifying and collecting the assets;
- Determining the value of those assets;
- Identifying and paying the decedent’s liabilities and estate expenses;
- Filing necessary tax returns and paying applicable taxes; and
- Transferring the remaining property to the inheritors.
These activities are usually best carried out by the executor or administrator of the estate, who is typically a family member, under the supervision of a probate court. Just how much court supervision is needed and how much time it will take to properly handle an estate from start to finish depends on each estate’s situation, considering its size and type of assets, the complexity of the estate plan (or lack of), creditor issues, missing or squabbling beneficiaries, etc. In Texas, there are several procedural options (the details of which are beyond the scope of this article), making Texas perhaps the most probate court friendly jurisdiction.
Alternatively, the same tasks can be carried out by a trustee the decedent named in his revocable “living” trust created prior to death without any involvement by a court. However, if the decedent has assets or issues outside the realm of his trust, a court proceeding may be unavoidable.
Having a clear estate plan – whether written in a will or a revocable “living” trust – will certainly streamline some of the estate administration tasks. However, every decedent’s estate requires some amount of legwork that most everyone generically calls “probate.”
- This is true even if the decedent’s estate is small.
- This is true whether the decedent was married or single, has children or none.
- This is true even if the decedent’s assets pass to named recipients under beneficiary designation forms or via pay-on-death or right of survivorship documents.
- This is true even if the decedent created a revocable “living” trust.