Probate 101: Navigating the Basics and Understanding the Role of Executors

When someone passes away, the most common way to distribute their assets to the beneficiaries is via the probate process. Unfortunately, most people do not understand the probate process or how it works. Addressing some of these questions can help family members feel more comfortable with the process and understand how an experienced probate attorney can help.

The Purpose of the Probate Process

Probate is the legal process by which the probate court formally recognizes a person’s death (referred to as the “decedent”) and authorizes the administration of their estate. The main objective of the process is to legally transfer the assets owned by the decedent to the decedent’s heirs and beneficiaries. In cases where probate is necessary, without this process, heirs and beneficiaries of the decedent’s estate cannot take full legal ownership of the decedent’s assets. This is a serious issue when it comes to assets such as real estate, cars, and other titled assets.

The Probate Process: Step By Step

The probate process essentially consists of four basic steps:

1. Opening the probate case: The estate, either through an executor or someone else acting on behalf of the estate, will file paperwork with the probate court stating that the decedent has died and requesting that the court admit the Will to probate and appoint the executor or other person to administer the estate.
2. Collecting assets: The executor must then inventory and gain control of all estate assets.
3. Resolving creditor claims: In many cases, the executor must pay debts, taxes, or other claims against the estate.
4. Distributing assets: Finally, the executor must distribute the remaining assets to the estate’s beneficiaries.

Is Probate Necessary?

The probate and administration process is not always necessary.  Sometimes a lesser proceeding is available to accomplish the same objectives.  It is important to meet with a probate attorney to discuss the facts of your situation to see if probate is necessary.

There is a popular misconception that you do not need to go through the probate process if the decedent dies without a Will. This is not always the case. If an administration is necessary, the estate will proceed through a probate process in the same steps listed above, but the assets of the estate will be distributed according to Texas intestate succession laws.

Who Is the Executor?

The executor is the person who is responsible for carrying out the wishes of the deceased as set forth in the Will. One of the chief purposes of a Last Will and Testament is to name the person who will act as the executor.

Mirroring the steps of the probate process, the executor has five main responsibilities.  The executor must:

1. Present the Will to the probate court;
2. Notify beneficiaries and creditors of the estate;
3. Identify and collect assets of the estate and prepare an Inventory of the assets;
4. Pay any debts owed at the time of the decedent’s death; and
5. Distribute any remaining assets according to the terms of the Will.

While their role may seem merely administerial, the executor has considerable legal obligations to all parties with an interest in the estate. Failure to meet these obligations can result in potential legal liability. It is important for executors to have experienced probate counsel assist them in their duties.

Contact J Nichols Law, PLLC to Discuss Your Probate Needs

The probate process can be challenging, and mistakes can cost you time and money. Whether you are an executor or a beneficiary, we can help you navigate the probate process. Contact us today by calling 409-257-7878 to discuss your probate case and how we can help.