Arlington Probate Lawyers

How Long Does a Texas Probate Take?

Probate can be a lengthy process when the estate is complex. However, it generally takes about six months for a simple estate. The process will take much longer if the original will cannot be located or if a person or persons contest the will. 

One primary reason to set up an estate plan that distributes certain assets outside of probate is the time it takes to probate a will. 

These assets could include:

• Insurance policies
• 401(k) plans
• Profit-sharing plans
• Pensions
• KEOGHs
• IRAs

Assets could also be titled so they do not have to go through probate. If the estate is worth more than $50,000, has multiple beneficiaries, or particular beneficiaries contest the will, an experienced probate lawyer is imperative. 

The legal issues associated with such probate can be daunting for most people; having solid legal advice can make the process go much more smoothly.

Independent vs. Dependent Probate

Independent probate administration procedures fall under the “easier” type of probate. The court appoints an administrator who submits an inventory of the decedent’s assets and any monies owed to the estate. 

Once the inventory is filed with the court, the estate administration will continue without court oversight. The vast majority of Texas estates are independently administered. Under Texas law, a person making a will may include a special provision allowing independent will administration.

The second type of dependent administration involves the Texas court much more. An administrator will be appointed; however, every step of the probate procedure must have court approval. 

Generally, dependent administration occurs when issues surround the estate—usually beneficiaries disputing the distribution of assets. Dependent administration aims to ensure each beneficiary’s rights are appropriately protected.

Unfortunately, the cost of a dependent administration is significantly higher than for an independent administration. Because every step requires a judge’s approval, the process is more expensive and much lengthier. 

Depending on the overall size of the estate, a dependent administration process can result in thousands of dollars for administration costs rather than for beneficiary distribution.

The Texas Probate Process

The probate process must be started in the correct jurisdiction—the probate court in the county where the decedent lived. If probate is filed in the wrong court, it could be thrown out even after all the steps have been followed. 

The steps for probate are as follows:

• An application for probate is filed;
• Approximately three to four weeks will elapse before the probate hearing;
• During the wait, the County Clerk will post a notice stating the probate application was filed. If no contests are received, the administration of the will can move forward;
• The will is validated (or, if there was no will, an administrator is appointed);
• The executor files an inventory of assets and a list of claims within 90 days after the hearing;
• An Affidavit in Lieu of Inventory may be filed by the executor with the County Clerk so that the estate’s asset information is not on public record;
• The beneficiaries will be identified;
• The creditors will be notified and allowed to file a claim against the estate;
• If there are contests to the will or other disputes, these must be resolved by a probate court judge, and
• The assets are then distributed.

If the will is challenged, the person contesting it must prove it is invalid or that it has an issue. Will challenges can be based on allegations that: 

• The will was forced on the decedent due to third-party influence;
• The will was forged;
• The will was improperly executed; or
• More than one executed will exist.

Whatever the problem, the court must resolve it before the probate can be completed.

Taxes in a Texas Probate

Texas has no inheritance tax, which means the state is not owed any death-related taxes. However, a federal estate tax applies on estates exceeding a certain threshold, with varying tax rates. Most Texas estates are exempt because of the high estate value associated with the federal tax. 

However, the executor must file a tax return for the deceased, covering income from January 1^st until the date of the death. For beneficiaries, inheritance is generally not considered income, although inherited property could have built-in income tax consequences. 

Probate-related tax issues can be complex, requiring the assistance of an experienced probate attorney.