Just what is ‘Probate’ anyway?

The term probate refers to the entire process of wrapping up the affairs of one who has died, known as the "decedent." To navigate the probate process, you must answer a series of questions, including:

Is the decedent dead? Yep, you would think this one would be easy. But what about the fellow who falls off the sailboat on his vacation to the Caribbean and the body cannot be recovered? How long do you have to wait to see if he turns up on some deserted island?

Did the decedent leave a will? This requires you to understand what constitutes a valid will. Often, the decedent intended to leave a will, but failed to do it right. If a will was left, proof must be offered that it was never revoked or amended.

If there is no will, who are the heirs? When there is no will, the decedent is said to have died “intestate” and Texas law dictates who gets what. The law may match the testator's wishes; it may not.

Are there any creditors? The decedent’s property passes subject to the debts he or she owed. The person receiving the property does not become personally liable for the decedent's debt, but the property may have to be sold to pay the debt. If there are no debts, there may be no need to administer the estate.

If an administration is necessary, who gets to handle it? If the will appoints someone to handle the estate, that person is called an executor. If there is no will (or the will fails to appoint anyone), the court will appoint an administrator. Many families end up fighting over who gets to be appointed. Later, they may wish they had never taken on the job.

Should the executor/administrator be independent or dependent? The default rule in Texas and most states is that the probate court supervises the administration of all estates. For example, permission to pay any debt or sell any property must be obtained in advance. Also, the administrator must usually put up a surety bond. The added expense can be hard to justify unless the family likes the idea of having extra protection against mismanagement of the estate. In certain instances, Texas law allows the representative of the estate to be free of court supervision, greatly reducing the cost of probate.