Probate is the legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person’s will or the estate of a deceased person without a will.
Testate Probate: When There Is A Will
Testate is when a decedent leaves a will. This form of probate is known as testate administration. Simple testate administration usually involves a named independent executor with a valid, original will. When there are no disputes regarding the will and the will is a valid original, Texas has one of the most simple and inexpensive probate processes in the country.
Here is a quick overview of the process for testate probate:
The named executor in the will usually hires an attorney to perform the probate. The attorney files an application for probate and files the original will with the court. A hearing is then set in which the will is proven to be valid before the court. The court will then issue Letters of Testamentary that evidence the executor’s authority to act on behalf of the estate.
Intestate Probate: When There Is No Will
Intestate probate is when a decedent does not have a will. Probate of these types of estates are more involved than estates where the decedent has left a will. When someone dies intestate, Texas law lays out how the estate will be distributed in the Texas Probate Code which specifies the heirs that will inherit the person’s property. Many kinds of assets will require a probate to be done in court so that assets can be properly distributed to the heirs.
Here is a quick overview of the process for intestate probate:
A relative of the decedent who stands to inherit usually hires an attorney to perform the probate. The attorney files an Application for Letters of Administration with the court, and the court appoints an attorney ad litem to investigate who are the decedent’s heirs. A hearing is then set where the court determines who are the appropriate heirs. The court will then issue Letters of Administration that evidence the administrator’s authority to act on behalf of the estate.
Texas Affidavit Of Heirship
Dying without a will in Texas often leaves problems for heirs when real property is involved. These problems often come to light when the heirs attempt to sell the property in a transaction where the buyer is requiring title insurance. One of the most efficient methods of remedying these issues involves the use of an affidavit of heirship.
The affidavit of heirship describes the family history and details who the likely heirs are according to the Probate Code. In addition, the affidavit must be signed under oath by a disinterested person knowledgeable about the family history and attested to by several witnesses. Finally, the affidavit is filed in the real property records of the county where the property is located. After the affidavit is filed, a deed can now be prepared to transfer the property to a new buyer or consolidate the property to one heir.
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