FAQS Probate & Estate Administration

Most estates will need some level of administration through the court system.  Many of the questions we hear frequently are answered below.

What must be done if there is no will?

This is the most complicated scenario if the estate is valued at more than $50,000. It will likely involve an heirship proceeding (an Application to Determine Heirship) to determine the persons considered by law to be the heirs who inherit the estate of the deceased, and a lengthy court-supervised administration of the estate.

If the estate is valued at $50,000 or less, then a small estate affidavit may be available to clear title to the assets. Another procedural avenue used to avoid court administration when there is no will, and only title to land or vehicles are involved, is an affidavit of heirship. The small estate affidavit and affidavit of heirship only work in limited circumstances. Determining when to use these strategies is critical.

Who inherits property if there is no will?

In Texas, property is inherited as follows in the absence of a will:

1. If you are married:

If all of your children are also the children of your current spouse, then your spouse will inherit all of your community property. Your children will inherit a two-thirds interest in every item of your separate property. The remaining one-third of each item of separate property will go to your spouse, but if the item is real estate, it returns to your children upon the death of your spouse.

If you have children from a previous marriage, your children will inherit all of your half of the community property. Your spouse will keep her half of the community property. Your separate property will be distributed the same way as in the previous paragraph.

If you have no children, your spouse will inherit all of your community property. Separate property that is not real estate will also go to your spouse. Separate real estate will go half to your spouse, one fourth to your mother, and one fourth to your father. If either parent is deceased, that parent's share will be inherited by your siblings if they survive you. If none of your parents or siblings (or their descendants) survive you, your spouse will inherit all of your separate real estate.

2. If you are not married (this includes being widowed or divorced):

Your children will inherit all of your property equally. If any child has died before you, his share will go to his children. If he has no children, it will go to your surviving children. If a child of a deceased child is also deceased but has left a child of his own (your great-grandchild), that great-grandchild will get its parent's share of your estate, and so on.

If you have no children, your father will inherit half of your property, and your mother will inherit the other half. If either parent is deceased, your siblings will inherit that parent's share. If a sibling is deceased but has left a child (your niece or nephew), that child will inherit its parent's share, and so on. If a sibling is deceased and has left no children, the surviving siblings will take that sibling's share. If neither of your parents nor any of their descendants survive you, your grandparents will inherit your estate equally. If either grandparent has died before you, their descendants (your aunts, uncles, and cousins) will inherit your estate.

What is a "probate estate" and what are "non-probate assets"?

Generally, everything you own at the time of death is part of your "probate estate."  Probate administration is the procedure through which title to property in the "probate estate" is transferred from the deceased to the beneficiaries. Certain types of assets are “non-probate assets,” which are not part of your "probate estate." These include:

Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.

Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.

Life insurance policies.

Bank accounts with “pay on death” (POD) designations or “in trust for” designations.

Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.

How much does probate cost? How long does probate take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a will, and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executor fees, attorney’s fees, accounting fees, court fees, appraisal costs, and surety bonds. These can be 5% to 20% of the total estate value, depending upon the complexities and how well the estate planning documents were written. Most attorneys charge an hourly rate for their time. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.

Do I need to hire a lawyer to probate a will?

Except in limited circumstances, courts in Texas require an executor to be represented by an attorney in a probate matter because an executor not only represents himself, but also the interests of beneficiaries and creditors. Since under Texas law, only a licensed attorney can represent the interests of others, preparing and filing pleadings in a probate matter without the assistance of counsel would constitute the unauthorized practice of law.

How can I plan to avoid any court administration of my estate?

To avoid court administration, either you own nothing, or you have an estate plan that has placed all of your property into a living trust before you die. We do not advocate making yourself dirt poor. Instead, we can create a comprehensive estate plan for you that does not require court involvement.

What does it mean to probate a will as a muniment of title?

In certain circumstances, it may be appropriate to probate the will as a muniment of title. The will must be filed within 4 years after the death of the testator (the person making the will). The result of this proceeding will be to vest title in the persons entitled to inherit the property under the will. The Order Admitting the Will as Muniment of Title is signed by the judge, and then a certified copy of the Order and the Will is filed in the real property records of the county where the property is located. By asking the court to probate a will as a muniment of title, you are basically telling the court that no other action is needed for this estate other than finding the will to be valid.

What is a small estate affidavit?

If a person dies without a will, and the estate is worth $50,000 or less (not including the deceased person’s homestead or other exempt property), then Texas law allows the person or people inheriting from that estate to file a Small Estate Affidavit with the court and avoid most of the costs of a court supervised administration. The Small Estate Affidavit must comply with the statutes and be approved by the court. There are also certain notice provisions that must be complied with. If the homestead is the only real property in the estate, then the homestead may be transferred using the Small Estate Affidavit.

Do I get paid for serving as an Executor of a will or Administrator of an Estate?

Executors and Administrators are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor/Administrator has fiduciary duties to the estate and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor or Administrator retain an attorney and an accountant to advise and assist him with his or her duties.

What happens if someone objects to the will?

An objection to a will, also known as a “will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate. In order to contest a will, one has to have legal “standing” to raise objections. This can occur when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will. In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as Executor.

Read more on our FAQs on Probate and Estate Litigation.







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Willi Law Firm, P.C.
5920 W. William Cannon Dr.
Bldg. 6, Ste. 100
Austin, TX 78749

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The attorneys at Willi Law Firm are your Austin, Texas resource for estate planning, wills, living trusts, firearms trusts, powers of attorney, living wills, probate and estate administration, trust administration, special needs trusts, disability planning, Medicaid applications and qualification, long-term care planning, elder law, Medicaid crisis planning, charitable planning, estate tax planning, business and corporate planning, business succession and sales, and asset protection.

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